Can a lawyer advise a client to consult several other lawyers, with no intent to hire them, solely to create conflicts that bar those lawyers from representing the opposing spouse?

Plain-English summary

A lawyer met with a client about a family-law matter and recommended that the client set up appointments with two other lawyers, advising the client to discuss his domestic case with them but with no intention of retaining either. The sole purpose was to create a conflict of interest so that neither of those lawyers could later represent the client's spouse in the domestic action. The inquiry asked whether giving that advice was ethical, whether a paid retainer to the advising lawyer mattered, and whether it mattered if the client, rather than the lawyer, first raised the idea.

The opinion concluded the advice was unethical. It applied Rule 7.2(a)(1), which prohibits a lawyer from taking action on a client's behalf when the lawyer knows, or when it is obvious, that the action would serve merely to harass or maliciously injure another. Helping a client create a conflict of interest in order to obstruct the opposing party's access to counsel of her choice serves merely to harass the other party and impedes the right of clients to choose counsel freely. The opinion held a paid retainer makes no difference, and that it does not matter whether the lawyer or the client first suggests the course of action: either way it is unethical for a lawyer to encourage a client to seek to disqualify particular lawyers from representing the opposing party.

Currency note

This opinion was issued in 1994, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell a client to consult other lawyers just to conflict them out?

A: No. The opinion concluded that advising a client to consult other lawyers solely to create conflicts barring them from representing the opposing party serves merely to harass and is unethical under Rule 7.2(a)(1).

Q: Does it matter if the client paid the advising lawyer a retainer first?

A: No. The opinion held a paid retainer makes no difference to the conclusion.

Q: Does it matter whether the client or the lawyer first raised the idea?

A: No. The opinion held that whether the lawyer or the client first suggests the tactic, it is unethical for the lawyer to encourage the client to seek to disqualify particular lawyers from representing the opposing party.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.2(a)(1), corresponding to Model Rule 4.4, which prohibits action on a client's behalf that the lawyer knows would serve merely to harass or maliciously injure another. It treated a deliberate scheme to taint potential opposing counsel through sham consultations as such harassing action and as an impediment to the opposing party's right to choose counsel.

Citations and references

Rules of Professional Conduct:

• MR 4.4 (respect for rights of third persons; no actions merely to harass)
• North Carolina Rule 7.2(a)(1)

See also

• NC Ethics Op. RPC 188: lawyer closing a deal his realtor spouse brokered
• NC Ethics Op. RPC 185: lawyer owning stock in a title insurance agency

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-181/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry #1:

Attorney A meets with Client for a consultation about a family law matter. During the consultation, Attorney A recommends that Client set up appointments with Attorney X and Attorney Y. Attorney A advises Client to discuss his domestic case with the two other lawyers but with no intention of retaining either lawyer to represent him. The sole purpose for consulting with Attorney X and Attorney Y is to create a conflict of interest so that neither Attorney X nor Attorney Y can represent Client's spouse in the domestic action. Is it ethical for Attorney A to give this advice to his client?

Opinion #1:

No. Rule 7.2(a)(1) prohibits a lawyer from taking action on behalf of his client "when he knows or when it is obvious that such action would serve merely to harass or maliciously injure another." Assisting a client in creating a conflict of interest in order to obstruct the opposing party's access to counsel of her choice is action that serves merely to harass the other party and is an impediment to the right of clients freely to choose counsel.

Inquiry #2:

Does it make a difference if Client has paid a retainer fee to Attorney A before receiving this advice?

Opinion #2:

No.

Inquiry #3:

Does it make a difference if Client, and not Attorney A, raises the issue by asking Attorney A whether he should consult with Attorney X and Attorney Y for the purpose of preventing his spouse from hiring either lawyer?

Opinion #3:

No. Whether the lawyer or the client first suggests this course of action, it is unethical for a lawyer to encourage his client to seek to disqualify certain lawyers from representing the opposing party.