IN THE SUPREME COURT OF THE STATE OF NEVADA
JOSEPH POHL AND MEGAN CLANCY, No. 64725
HUSBAND AND WIFE,
Petitioners,
vs.
THE NINTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
DOUGLAS; AND THE HONORABLE
FILED
NATHAN TOD YOUNG, DISTRICT JAN 2 8 2016
JUDGE,
TRACE K. LINDEMAN
Respondents, K OF SUPREME COURT
CLERr
BY
and DEPUTY CLERK
CARY LEE CHRISTIE AND BAMBI
ALPERSON CHRISTIE, HUSBAND
AND WIFE,
Real Parties in Interest.
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging
a district court order disqualifying petitioners' counsel under Nevada Rule
of Professional Conduct 1.18(c). We accord the district court broad
discretion in attorney disqualification matters, Nev. Yellow Cab Corp. v.
Eighth Judicial Dist. Court, 123 Nev. 44, 54, 152 P.3d 737, 743 (2007), and
must determine whether the district court manifestly abused its discretion
in disqualifying counsel based on a consultation with a former prospective
client.
On June 11, 2013, real party in interest Cary Christie called
attorney Thomas J. Hall to discuss his rights to use a stone pathway,
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located on the property belonging to his neighbors, petitioners Joseph Pohl
and Megan Clancy. For the 15 years he and his wife, Bambi Christie,
resided at their current property, the Christies used the stone pathway to
access the beachfront area of Lake Tahoe. This changed after petitioners
bought their property in 2012 and subsequently blocked the Christies'
access. During his 20-minute consultation with Hall, Cary Christie
discussed "the pathway at issue, the usage history of the pathway, and the
legal ownership of the pathway," as well as "legal theories, facts, and a
course of action," and scheduled a meeting for further discussion.
On June 13, 2013, Hall was scheduled to meet with the
Christies at their property. The morning of that meeting, however, Hall
discovered that petitioners were the neighbors against whom the Christies
sought an easement, and because petitioners were Hall's current clients,
he informed the Christies of his conflict and declined to represent them.
The next day, Hall sent a letter to the Christies explaining that he has
represented petitioners for over ten years, and stating:
It was not until yesterday that I looked at the map
and APN numbers, and realized that your
concerns are with fencing the pathway to Lake
Tahoe, which fencing was placed by Joseph Pohl.
Thus, under the circumstances, I am unable to
represent your interest in this matter in any
regard.
Hall sent a copy of this letter to petitioners.
A little over a month later, on July 26, 2013, petitioners—
represented by Hall—filed a complaint to quiet title against multiple
defendants, including the Christies. The Christies filed a counterclaim to
quiet title, seeking a prescriptive easement on the stone pathway. The
Christies also moved to disqualify Hall, which the district court granted.
The district court's order recognized that the Christies and Hall dispute
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the "extent and correct characterization of the consultation."
Nevertheless, the district court concluded that the language of NRPC 1.18,
which states whether information "could be significantly harmful," favors
a finding of disqualification based on the prejudice it may have on the
Christies.
A petition for writ of mandamus is the proper vehicle for
challenging an attorney disqualification order. Nev. Yellow Cab, 123 Nev.
at 49, 152 P.3d at 740. When deciding attorney disqualification motions,
district courts bear the difficult and delicate burden "of balancing
competing interests: the individual right to be represented by counsel of
one's choice, each party's right to be free from the risk of even inadvertent
disclosure of confidential information, and the public's interest in the
scrupulous administration of justice." Id. at 53, 152 P.3d at 743 (internal
quotation omitted). As a general rule, doubts should "be resolved in favor
of disqualification." Id. (internal quotation omitted).
Here, the district court disqualified Hall on the grounds that
he violated paragraphs (b) and (c) of RPC L18, 1 which provides in relevant
part:
(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.
1 The
2014 amendments of RPC 1.18 were stylistic and do not affect
our analysis.
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(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. . . .
(Emphases added.) It is undisputed that Cary Christie is considered a
former prospective client, falling within the purview of RPC 1.18. Thus,
this court must determine whether the district court manifestly abused its
discretion in deciding that Hall violated paragraphs (b) and (c) of RPC
1.18.
Paragraph (b) of RPC 1.18 concerns the revelation of
confidential information. The Christies argue that Hall's written letter
violated paragraph (b) because it revealed information that Hall learned
in his initial consultation with Cary Christie. Specifically, it alerted
petitioners of the substance of Cary Christie's consultation by stating:
"your concerns are with fencing the pathway to Lake Tahoe, which fencing
was placed by Joseph Pohl." Hall argues that "there is nothing in Rule
1.18 that would prohibit a lawyer from informing an existing client that he
previously had been contacted by another party regarding a potential
claim against the client." Hall cites to State ex rel. Thompson v. Dueker,
346 S.W.3d 390, 396 (Mo. Ct. App. 2011), to support his argument that "a
conflict does not occur because of the mere Tact of consultation.' Hall's
quotation is correct, but incomplete. Dueker provides that the mere fact a
former prospective client had a consultation with an attorney does not, by
itself, create a conflict of interest. Id. Rather, a conflict occurs "because of
the passing of confidential information from the prospective client to the
lawyer." Id. (internal quotation omitted).
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It is generally accepted that the fact a prospective client
consulted with an attorney is not protected by the attorney-client
privilege, and, therefore, not confidentia1. 2 See United States v. Robinson,
121 F.3d 971, 976 (5th Cir. 1997) ("The fact of representation, or an
attempt at securing it, is generally not within the privilege."); State v.
Adamson, 665 P.2d 972, 985 (Ariz. 1983) ("Preliminary matters such as
the fact of consultation, as well as the dates, places, and means of
consultation, are usually outside the coverage of the privilege."). However,
the substance of a consultation is protected by the attorney-client privilege
and, therefore, must be maintained confidentially to comply with RPC
1.18(b). 3 Paragraph (b) incorporates the exceptions regarding the
revelation of information in RPC 1.9(c), which allow an attorney to use
2 In Nevada, the attorney-client privilege encompasses prospective
clients. See NRS 49.045 (defining "client" to include one "who consults a
lawyer with a view to obtaining professional legal services from the
lawyer"); see also NRS 49.095.
3 United States ex rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183,
189 (D.D.C. 2014) ("[A] consultation with a lawyer does not make
underlying facts privileged, even though the substance of the discussion
about those facts would be."); Baez-Eliza v. Institut° Psicoterapeutico de
P.R., 275 F.R.D. 65, 72 (D.P.R. 2011) ("Mhe attorney-client privilege
applies only to communications that reveal the content of a legal
consultation."); Adamson, 665 P.2d at 985 (stating that the prosecutor's
question whether the witness met with an attorney about representation
was legitimate, but a question asking whether conversation between the
witness and the attorney concerned the bombing involved the substance of
the conversation, which was privileged); State v. Sheppard, 763 P.2d 1232,
1234 (Wash. Ct. App. 1988) ("The substance of the consultations for which
the fees were charged is protected by the privilege, and will remain
privileged despite a requirement that the amount, source and manner of
payment of the fee be disclosed.").
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confidential information against a former client if "these Rules would
permit or require" it or "when the information has become generally
known."
Here, Hall revealed the substance of Cary Christie's
consultation to petitioners. Without Cary Christie's permission, Hall
disclosed the content of the consultation and breached confidentiality
when he sent a copy of the letter to petitioners. Hall's defense that the
confidential information "inevitably would have been disclosed during the
course of discovery" does not warrant a preemptive disclosure of
confidential client communications. RPC 1.9(c)(1) allows information to be
used against a former client "when the information has become generally
known," not before. (Emphasis added.) In this case, Hall disclosed the
substance of the consultation in his letter dated June 14, 2013, over a
month before petitioners filed their complaint to quiet title. Hall
maintains that petitioners' complaint to quiet title was filed based on an
issue unrelated to his June 14 letter. However, the timing of the
complaint to quiet title is suspect, as it was filed a little over a month after
Hall's letter informing petitioners that the Christies sought legal advice
regarding petitioners' property. It was, therefore, not a manifest abuse of
discretion for the district court to find that Hall received confidential
information from the Christies that could have been significantly harmful
to them.
In addition to violating paragraph (b) of RPC 1.18, the
Christies argue that Hall violated paragraph (c), which concerns whether
representation is appropriate. Hall claims that the district court abused
its discretion because it appeared to rely on RPC 1 9, instead of RPC 1.18.
This claim, however, is meritless. Although there is significant overlap
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between 1.9 and 1.18, the district court distinguished the two rules by
stating that RPC 1.18 requires that "the lawyer received information from
the prospective client that could be significantly harmful." The other
elements of paragraph (c)—that the lawyer "not represent a client with
interests materially adverse to those of a prospective client in the same or
a substantially related matter"—are undisputedly present in this case.
Therefore, the district court focused exclusively on whether Hall received
information that could be significantly harmful to the Christies. The
district court answered that question in the affirmative based on the
submitted affidavits.
Although the parties refer to the content of the consultation in
generalized terms, the district court found, and neither party disputes,
that Cary Christie and Hall had "at least one extended telephone
conversation." Hall argues that the district court abused its discretion
because the Christies did not provide specific evidence of the alleged
confidential information disclosed in the consultation that could be
significantly harmful to them. Hall cites to Dueker, which states: "specific
evidence of the nature and substance of the information is required in
Rule 4-1.18 proceedings to establish that it is 'significantly harmful;'
speculative or hypothetical claims of harm are not enough." 346 S.W.3d at
396. Here, however, the Christies did provide specific evidence regarding
the nature and substance of the consultation. Dueker does not require
that the former prospective client divulge the specific statements made,
just the "nature and substance." Id. The affidavits of Cary Christie
satisfy this requirement by discussing the general topics of the potential
claim for an easement.
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Therefore, the district court did not manifestly abuse its
discretion in concluding that Hall received confidential information that
could be significantly harmful to the Christies. Accordingly, we
ORDER the petition DENIED.
C.J.
-C24a)tar
Parraguirre
Pickering
Pie/km(14e , J.
J.
Saitta
cc: Hon. Nathan Tod Young, District Judge
Law Offices of Thomas J. Hall
Ailing & Jillson, Ltd.
Douglas County Clerk
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