Can a North Carolina firm use an intake form disclaiming any client-lawyer relationship during a free consultation, then represent the consulting person's spouse against him?

Plain-English summary

The opinion addressed a free initial consultation in which the firm required the prospective client, Mr. A, to sign an intake sheet that, in bold capitalized print, acknowledged the appointment was a free consultation, stated that no legal advice would be given and only general information provided, and declared that no attorney-client privilege would exist unless and until Mr. A paid the firm, and that the consultation would not preclude the same firm from representing his spouse. During the consultation Mr. A disclosed personal information about his contemplated separation and his concern about the effect of divorce on his military retirement benefits. Weeks later another lawyer in the same firm filed a divorce complaint against Mr. A on behalf of his wife, seeking his retirement benefits.

The opinion concluded that a lawyer may not disclaim the existence of a client-lawyer relationship in this manner and then represent the opposing party, citing Rule 5.1(d). The disclaimer form did not neutralize the confidences Mr. A had shared or the conflict created when the firm took on his adversary.

The opinion added a second point. It concluded that it is also unethical for a lawyer to encourage a client to disqualify the adversary's lawyers by arranging a series of initial consultations in which confidential information is revealed, and that this is true whether the client or the lawyer first suggests the tactic, citing RPC 181.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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 consultation disclaimer form let the firm later represent the other side?

A: No. The opinion concluded that a lawyer may not disclaim a client-lawyer relationship through such a form and then represent the opposing party, citing Rule 5.1(d).

Q: Does calling the consultation "free" and saying no privilege attaches change the result?

A: No. The opinion concluded that the disclaimer language did not permit the firm to take on the consulting person's adversary after he had divulged personal information in the consultation.

Q: Is it proper to use consultations to knock out the other side's lawyers?

A: No. The opinion concluded that arranging a series of initial consultations that reveal confidences in order to disqualify the adversary's counsel is unethical, whether the client or the lawyer proposes it.

Background and rules framework

The opinion applied North Carolina's then-current conflict rule, Rule 5.1(d) (corresponding to Model Rule 1.7), to a firm's attempt to contract around the duties that arise from a consultation. The concern about confidences shared by a would-be client anticipates the prospective-client protections now reflected in Model Rule 1.18 and the confidentiality duty of Model Rule 1.6. It relied on RPC 181 for the prohibition on staging consultations to disqualify opposing counsel.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest)
• MR 1.18 (duties to a prospective client)
• MR 1.6 (confidentiality of information)
• North Carolina Rule 5.1(d)

Other opinions cited:

• RPC 181: it is improper to arrange consultations to disqualify the adversary's lawyers

See also

• NC Ethics Op. RPC 246: confidentiality owed to a prospective client
• NC Ethics Op. 2006-14: charging a fee for an initial consultation
• NC Ethics Op. 2005-4: confidences of a parent seeking representation for a minor

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-244/

Original opinion text

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

Inquiry:

Contemplating separation from his wife, Mr. A. scheduled a free initial consultation with Attorney X, an associate in XYZ Law Firm. Prior to the consultation, Mr. A completed an intake sheet that included the following disclosure in bold, capitalized print:

It is acknowledged that my appointment is for a free office consultation. No legal advice will be given. I will be provided only general information concerning North Carolina laws. Upon a request, a fee will be quoted for legal representation. I understand that no attorney-client privilege will exist unless and until I pay this firm to represent me and that this free consultation will not preclude my spouse from employing Attorney X or any other attorney with XYZ Law Firm.

Mr. A's signature was required on the form.

Attorney X provided Mr. A with a general explanation of the law of domestic relations. During the consultation, Mr. A told Attorney X he was specifically interested in the consequences of separation and the effect of separation and divorce on his military retirement benefits. Mr. A divulged personal information pertinent to his potential separation from his wife. Attorney X addressed these areas as requested by Mr. A.

Three weeks later, Mr. A separated from his wife and set up a follow-up appointment with Attorney X. Four days before the scheduled appointment, Mr. A was served with a complaint for a divorce from bed and board. Another lawyer in XYZ Law Firm was identified in the complaint as the attorney of record for Mr. A's wife. Abandonment was alleged in the complaint and Mr. A's retirement benefits were included in the prayer for relief.

Is it permissible for a lawyer to disclaim the existence of a client-lawyer relationship in this manner and subsequently represent the opposing party?

Opinion:

No. See Rule 5.1 (d) of the Rules of Professional Conduct.

It is also unethical for a lawyer to encourage his or her client to seek to disqualify other lawyers from representing the client's adversary by arranging a series of initial consultations with the client in which confidential information is revealed. This is true whether it is the client or the lawyer who first suggests this course of action. RPC 181.