The State Bar Association of North Dakota Summer 2015 Gavel Magazine | Page 15

Potential Client Disqualification:

AVOIDING A TRAP
FOR THE UNWARY

in N.D.R. Prof. Conduct 1.7, the general rule on
conflicts of interest, and N.D.R. Prof. Conduct
1.9, the rule describing a lawyer’s duty of loyalty to
You are at your desk when a call comes in on your
direct line. The caller’s name sounds vaguely familiar former clients.
but before you can place him he provides a gush of
information about the divorce action he wants you The adoption of N.D.R. Prof. Conduct 1.18
extended the duty of confidentiality and, to a lesser
to file on his behalf. By the time the caller pauses
to take a breath, you remember that your law partner extent, the duty of loyalty to potential clients. Even
has opened a file on behalf of the caller’s wife. You before the adoption of ABA Model Rule 1.18,
immediately advise the caller you have a conflict and court decisions recognized that a lawyer owes an
will not be able to represent him. Several days later, obligation of confidentiality to anyone consulting
the lawyer in good faith, whether or not the lawyer
your partner tells you he has filed a divorce action
is actually hired. See, e.g., Westinghouse Elec. Corp. v.
on behalf of the caller’s wife. You say nothing but
wonder if the earlier phone call created any conflict Kerr-McGee Corp., 580 F.2d 1311, 1319 (7th Cir.
issues for you or your partner. No, you tell yourself, 1978) (holding that a professional relationship is not
you have no obligation to the caller because he was dependent upon the payment of fees, nor upon the
execution of a formal contract); see also ABA Comm.
never your client.
on Ethics & Professional Responsibility, Formal Op.
90-358 (1990) (discussing a lawyer’s duties of loyalty
You have just fallen into a trap for the unwary. By
and confidentiality to a would-be client seeking legal
failing to recognize that your ethical obligations
representation).
extend not only to “clients” but also to “potential
By Brent J. Edison, Attorney at Law

Brent Edison is an
attorney with the
Vogel Law Firm’s
Fargo office where
his practice focuses
on civil litigation, trial
and appellate practice,
and professional
responsibility and
liability. Before joining
Vogel Law Firm,
Edison headed the
Office of Disciplinary
Counsel, where he
investigated and
prosecuted allegations
of ethical misconduct
by North Dakota
lawyers and judges.
Edison is a frequent
presenter on legal
ethics and professional
responsibility issues.

clients,” and by letting the caller provide you with
too much information, you have placed your firm at
risk for disqualification. See N.D.R. Prof. Conduct
1.18 (defining and specifying a lawyer’s ethical
obligations with respect to a “potential client”);
see also ABA Model Rule 1.18 (using the term
“prospective client” instead of “potential client”).

This article will discuss the rules governing a lawyer’s
interactions with potential clients and conclude with
tips on how to avoid potential client disqualification.
Duties of Confidentiality and Loyalty
A lawyer’s duty of confidentiality is recognized in
N.D.R. Prof. Conduct 1.6, which provides that “a
lawyer shall not reveal, or use to the disadvantage of
a client, information relating to the representation
of the client unless required or permitted to do so
by this rule.” A lawyer’s duty of loyalty is recognized

N.D.R. Prof. Conduct 1.18
Rule 1.18, regarding duties to potential clients,
provides:
(a) A person who discusses with a lawyer the
possibility of forming a client-lawyer relationship
with respect to a matter is a potential client.
(b) Even when no lawyer-client relationship
ensues, a lawyer who has had discussions
with a potential client shall not use or reveal
significantly harmful information learned in that
consultation, 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 potential client in the same
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