A legal note from Marshal Willick about efforts by some litigants to deprive their opponents of competent counsel, and what has been and can be done to counter such tactics.

There are ways in which attorneys can defend themselves from this tactic. This Legal Note goes over the ethics rule background, generally and specifically, that led to this situation, and then reviews the disqualification rule for prospective clients, and what Nevada did to give lawyers the tools necessary to avoid being wrongfully tactically disqualified.

I. THE TACTIC AND ITS PURPOSE

For many years, one tactic intended to gain an advantage in litigation has been to try to eliminate in advance as many opposing counsel as possible who might have the ability and skill to effectively represent the opposing party. To do so, a party would “consult” with as many top-tier possible opposing counsel as possible in advance before filing, for the purpose of creating “conflicts of interest” that would prevent those attorneys from representing the opposing party once litigation began.

In one particular case known to the Committee discussed below, a lawyer (apparently now suspended from practice for other violations) had deliberately set up consultations between his client and essentially every Fellow in the Nevada Chapter of the American Academy of Matrimonial Lawyers, even personally participating in those consultations, for the specific purpose of denying Academy-level representation to the opposing party. The lawyer later admitted spending the thousands of dollars those consultations cost as an “investment” in “case outcome.”

II. HISTORICAL BACKGROUND OF LAWYER ETHICS RULES

Those only interested in the specific topic of this Legal Note can skip the next two sections, but those interested in the deeper background of why and how ethics rules like the one discussed here came into existence might find this information useful.

The American Bar Association (ABA) adopted the original Canons of Professional Ethics on August 27, 1908, based on a Code of Ethics adopted by the Alabama Bar Association in 1887, which in turn was based on a judge’s lectures during the mid-1800’s.

Piecemeal amendments to the Canons occasionally followed. In 1913, the ABA formed its Standing Committee on Professional Ethics (later renamed several times until, in 1971, it became the Committee on Ethics and Professional Responsibility). A comprehensive review of the Canons of Professional Ethics was begun in 1964, resulting in the ABA’s 1969 adoption of the replacement to the Canons – the Model Code of Professional Responsibility. Most state and federal jurisdictions followed suit.

In 1977, the ABA began what was termed a “comprehensive rethinking of the ethical premises and problems of the legal profession,” which produced the Model Rules of Professional Conduct, adopted by the ABA on August 2, 1983. Again, most jurisdictions (including Nevada) adopted new professional standards based on those Model Rules, which the ABA amended 30 times over the following 17 years.

In 1997, the ABA established the Commission of Evaluation of the Rules of Professional Conduct (Ethics 2000 Commission) to again comprehensively review the whole rule set in light of changes in practice, technology, and social conditions. That process took until 2002, when the ABA substantially amended the Model Rules to take into account the Ethics 2000 Commission’s work, plus developments coming from the Commission on Multijurisdictional Practice, the Standing Committee on Ethics and Professional Responsibility, and the American Law Institute’s Restatement (Third) of the Law Governing Lawyers (2000).

III. THE NEVADA ETHICS 2000 EFFORT

In January 1986, the Nevada Supreme Court had adopted the 1983 version of the ABA Model Rules, “with certain amendments approved by this Court,” as the Nevada Rules of Professional Conduct. See (prior) SCR 150(1). The Court elected not to adopt the preamble or comments, but indicated that they “may be consulted for guidance in interpreting and applying” the rules as adopted in Nevada, set out at SCR 150-203.5, inclusive.

During the next 18 years, the Court occasionally revised the SCRs. For instance, SCR 155, regarding “fees,” was amended in 1993 and 1999. Changes were usually driven by cases, initiatives, or concerns internal to Nevada, however, and there was no coordinated review of changes being made by the ABA to the Model Rules over the same time. With both the Nevada and ABA rule sets being “nipped and tucked” over two decades, the Nevada rules became increasingly at variance with the ABA Model Rules.

Independently, the Nevada Standing Committee on Ethics and Professional Responsibility and the Nevada State Bar Board of Governors began initiatives to review the Ethics 2000 changes made by the ABA for the purpose of updating the rules of ethics in this State. Eventually, the Board of Governors merged these efforts and appointed a committee (the “State Bar of Nevada E2k Committee”) to consider whether Nevada’s Rules of Professional Conduct should be amended in whole or in part, using the ABA Model Rule changes as a basis for discussion.

The Committee Chair was attorney Steven B. Wolfson. The other members were the Hon. Deborah Schumacher, and attorneys Bruce Beesley, James Bradshaw, Dennis Kennedy, Bridget Robb Peck, Stephen Rye, UNLV Boyd law school ethics professor Jeffrey Stempel, and Marshal Willick. Bar Counsel Rob Bare was appointed as the Committee’s Reporter, assisted by paralegal Kristina Marzec, CLA.

The E2K Committee met throughout 2003 and early 2004, and maintained a work file, which was ultimately reconstituted as the Committee’s Report and Draft Recommendations, chronicling its discussions, research, and recommendations. The work file, committee minutes, research, etc., was previously available at http://www.nvbar.org/Ethics/e2k.htm, but the Bar apparently eliminated the link.

After public hearings, the Committee’s Report was finalized in December, 2003, and presented to the Nevada Bar Board of Governors, which modified some of the Committee recommendations and passed it to the Nevada Supreme Court, which further modified the provisions (in some places restoring the Committee’s original work) and issued the final rule set, repealing prior SCR 150-203.5, and replacing them with a new section of the Supreme Court Rules titled “Rules of Professional Conduct” numbered in accordance with the ABA Model Rules, effective May 1, 2006.

Those interested in a more complete recitation of all changes made by the Nevada Ethics 2000 Committee can see Marshal Willick, Editorial Preface to Revisions to Revised Nevada Rules of Professional Conduct, posted at https://www.willicklawgroup.com/published-works/ and the materials posted at https://www.willicklawgroup.com/family-law-ethics/.

IV. “DUTIES TO PROSPECTIVE CLIENTS”

The ABA Ethics 2000 Commission proposed a new Model Rule 1.18 (“Duties to Prospective Clients”) which a majority of the Nevada E2k Committee voted to adopt.

In essence, the new rule formally extended client confidentiality protections to a prospective client, defined as “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter.” The rule provides that even when no client-lawyer relationship is formed, the lawyer is not permitted to “use or reveal information learned in the consultation, except as the rules would permit with respect to information of a former client.”

The rule followed the trend in case law regarding lawyer discipline cases in other jurisdictions. Under it, the lawyer is additionally not permitted, after such a consultation, to represent a different client with interests materially adverse to those of the prospective client, at least 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.

Exceptions are provided, if both the prospective and actual client give informed consent, confirmed in writing, or the lawyer “took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client” and that lawyer, having been disqualified, is “timely screened” from the case, receives “no part of the fee therefrom,” and written notice is promptly given to the prospective client.

This provision for disqualification, with allowance for screening of the individual lawyer, is compatible with the evolved provisions relating to Lawyer Screening set out in RPC 1.10.

And Nevada has long recognized a robust doctrine of permitting clients to retain counsel of their choice; it is a high bar to assert facts sufficient to overcome that public policy. See, e.g., Millen v. District Court, 122 Nev. 1245, 148 P.3d 694 (2006) (When a judge’s “duty to sit” conflicts with a client’s right to choose counsel, the client’s right generally prevails).

V. HOW WE BALANCED “DUTIES TO PROSPECTIVE CLIENTS” WITH THE REALITY OF TACTICAL DISQUALIFICATIONS

The Committee dealt with the reality of “tactical disqualifications” by adopting as part of the rule itself (with some modifications) Comments 2 & 5 to MR 1.18, as subsections (e) and (f), since Nevada has not adopted the ABA Model Rule comments as a body.

The comment-based additions to the new rule are designed to cope with a couple of situations that had been observed. First, a party “disclosing” unsolicited information to trigger a disqualification. Second, where a party intentionally “consults” with an entire pool of qualified or specialized lawyers in a geographic area with the intent of conflicting all of them and thereby impeding the opposing party’s access to counsel.

At least one Committee member believed these concerns were strong enough to militate against adopting the “prospective client” rule at all, but the majority believed that inserting some of the comments provided by the Ethics 2000 Commission (with some amendments) into the rule itself provided sufficient protection to lawyers.

The incorporated comments provide, first, that a person who communicates information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, or for purposes which do not include a good faith intention to retain the lawyer in the subject matter of the consultation, is not a “prospective client” within the meaning of the rule.

So a prospective opposing party who hands over unsolicited “confidential information” gains nothing from doing so. In fact, as discussed years ago, the same result was reached under other rules and by case law. See Marshal Willick, Legal Note Vol. 50 — Cases on Disqualification, Privilege, Confidential Information, and Sanctions (Feb. 28, 2012), discussing NRPC 4.4 and Merits Incentives v. Dist. Ct., 127 Nev. 689, 262 P.3d 720 (2011), under which the only duty of an attorney receiving an “inadvertent disclosure” is to notify opposing counsel that it had been received.

The second comment-based provision permits a lawyer to “condition” conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. If the agreement expressly so provides, the prospective client may also consent to the lawyer’s subsequent use of information received from the prospective client.

The new rule represents a re-balancing of concerns. In prior case law, a “client,” for purposes of confidences, included anyone who contacts a lawyer for the purpose of obtaining legal representation. Todd v. State, 113 Nev. 18, 931 P.2d 721 (1997). The new rule contains a somewhat more sophisticated analysis, attempting to extend legitimate confidentiality protection to those who seek it in good faith, while protecting lawyers from those who seek to purposefully disqualify them, and giving lawyers an explicit means of preventing disqualification in advance of a consultation if they are concerned with the potential of such disqualification.

VI. HOW THIS WORKS IN THE REAL WORLD

First, as detailed in Legal Note 50, if you get unsolicited information, just disclose to your opponent, if any, that you got it.

In the event of concluding that you have been the target of a more pernicious tactical disqualification effort, do a realistic assessment of the situation and your options, and include your client in the process:

Have you in fact received any “confidential information”?

Does your website, or client consultation communications, or otherwise, contain notice that no information disclosed during the consultation will prohibit you from representing a different client in the matter? Does your agreement contain the client’s consent to your subsequent use of information received from the prospective client?

If you did receive confidential information, did you take “reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client,” and is it possible for you to be “timely screened” from the case? If you still want your firm on the other side of the case, give instructions re: not taking the fee from that client, and provide the required notice to the prospective client, and the other party.

If those measures are not practicable, evaluate the reality of being able to convince a court that such a tactical disqualification has been attempted and so should not constitute a conflict of interest; good evidence would be similar efforts to a significant number of your similarly-situated peers, but of course the precise facts of any such case will vary. If you think the assertion can be established convincingly, then discuss frankly with the client the cost/benefit balance of fighting a disqualification motion versus referring the client to another office under your specific facts.

VII. CONSEQUENCES FOR THOSE ATTEMPTING TACTICAL DISQUALIFICATIONS?

Clients who file or anticipate the filing of a divorce proceeding occasionally telephone or interview numerous attorneys as a means of denying their spouse access to effective representation.  The attorney should discourage such practices, and should not assist the client, for example, by responding to the client’s request for a list of matrimonial lawyers, if improper motives are suspected.  When the client has already contacted other lawyers for the purpose of disqualifying them, the client’s attorney should attempt to persuade the client to waive any conflict so created.

IX. QUOTES OF THE ISSUE