Comment Does Not Expand Or Alter Rules
The Georgia Supreme Court has dismissed charges brought against an attorney
Mignott was accused of learning information from a prospective client (who never became an actual client) and then using and revealing that information in a later proceeding adverse to that prospective client, who then filed the grievance underlying this matter.
No violation of the charged rules
As explained below, we conclude that Mignott did not violate either Rule 1.8 (b) or 1.9 (c) (2) because, as the Bar stipulated, Mignott never formed an attorney-client relationship with the grievant, and the provisions of the GRPC with which Mignott was charged do not apply to prospective clients. We therefore impose no discipline and dismiss this matter.
The Special Master improperly relied on a comment to Rule 1.6
Although the Special Master relied on former Comment 4A to Rule 1.6, a comment to a rule cannot change the text of that rule, which references only a lawyer’s confidentiality obligations to “a client.” See GRPC, Scope, Par. 21 (“The comments are intended as guides to interpretation, but the text of each Rule is authoritative.”). And given that a comment to a rule cannot change that rule’s text, it follows that a comment to one rule certainly cannot change the text of a different rule even if the comment references other rules. Nothing in the text of Rules 1.8 (b) or 1.9 (c) (2) allows us to interpret the word “client” as used in those rules to include prospective or potential clients who never became actual clients.
Discipline cannot be predicated under Rule 1.6 when no violation of that rule was charged. And although Rule 1.9 (c) (2) references Rule 1.6, that reference becomes relevant only if the text of Rule 1.9 (c) (2) already applies to the conduct in question, i.e., if a lawyer’s prior representation of a “client” is at issue. Therefore, at the time of Mignott’s alleged misconduct, Rules 1.8 (b) and 1.9 (c) (2) applied only to clients and former clients, not former prospective clients.
Thus
We conclude that the Review Board and the Special Master erred by recommending any discipline based on Mignott’s charged misconduct, because the Bar did not prove by clear and convincing evidence that she violated Rules 1.8 (b) and 1.9 (c) (2). We therefore reject the recommendations for suspension made by the Special Master and the Review Board. No discipline is imposed, and this matter is dismissed.
Georgia Rule of Professional Conduct 1.18 (uncharged here) provides
RULE 1.18. DUTIES TO PROSPECTIVE CLIENT
(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing.
The maximum penalty for a violation of this rule is disbarment.
(Mike Frisch)