May a firm represent a party adverse to a person who briefly consulted one partner before the firm declined that person's case?
Apply this to your situation
This page answers the general question as of 1996. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A firm member held two brief calls with a person who described a pending lawsuit and asked about representation. The firm declined the matter. Another party in the same lawsuit later asked the firm to represent it against that caller. The firm said the calls disclosed the claims and parties for a conflict check but no confidential information.
The committee said the caller did not become a former client merely through the declined calls. On the stated facts, Rule 1.7 did not bar the later representation. Under Rule 1.10, however, confidential information received by one firm lawyer could disqualify the whole firm. The firm had to assess what actually was communicated. It could not infer that nothing confidential was shared just because the caller's later counsel did not specify the information; the committee declined to decide that factual issue.
Currency note
This opinion was issued in 1996, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Was the declined caller a former client under this opinion?
A: No. The committee said the brief calls did not establish a client relationship.
Q: Could the firm rely on opposing counsel's failure to identify confidential information?
A: No. The committee said the firm had to determine for itself what the intake lawyer received.
Q: What would happen if one lawyer received confidential information?
A: The committee said Rule 1.10 would impute the resulting conflict to the whole firm.
Background and rules framework
The committee applied North Dakota Rules 1.7 and 1.10 and referred to its Opinion 96-04 for a related intake-conflict analysis. It expressly declined to decide whether the calls actually conveyed confidential information.
Citations and references
- North Dakota Rules of Professional Conduct 1.7 and 1.10.
- SBAND Ethics Committee Opinion 96-04, cited in the opinion.
See also
Source
- Official index: State Bar Association of North Dakota ethics opinions.
- Opinion scan: archived official PDF. The first four pages contain Opinion 96-05, approved February 28, 1996; the remaining pages include the request. Its conclusion says the declined intake "does not prevent another member of the firm from representing the adverse party" where no client relationship formed and no confidential information was obtained.
Original opinion text
Full opinion text unavailable from the official source; see the linked scan for the complete opinion and attachments.
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