The Consultation That Wasn't Supposed to Matter
Dana Reyes is a solo practitioner in Concord, New Hampshire. In January, Priya Nair came to her for a one-hour consultation about a business dispute with her former partner, Marcus Hall, over their Nashua landscaping LLC. Priya brought internal emails, a spreadsheet showing $74,000 in transfers Marcus made without her signature, and her theory that Marcus backdated the LLC's operating agreement to strip her voting rights. She paid nothing, signed no engagement letter, and Reyes declined the case because of caseload. Reyes kept a two-page intake memo with her consultation notes in a closed-intake file. In September, Marcus-now represented by another lawyer-asked Reyes to defend him in Priya's suit, which Priya filed in Hillsborough County Superior Court with new counsel. Marcus's lawyer says the consultation created no attorney-client relationship and offers Marcus's written consent to the representation. Reyes believes she can "screen" herself because she is the only attorney in her office and the intake memo sits in a closed file.
1. May Reyes accept the representation of Marcus? Analyze under the New Hampshire Rules of Professional Conduct.
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No. The analysis starts with the fact that a fee is not what creates the duty-New Hampshire Rule 1.18(a) treats a person who consults a lawyer about the possibility of forming a client-lawyer relationship as a prospective client, whether or not money changes hands and whether or not the lawyer is hired.
Step 1: Confidentiality. Rule 1.18(b) bars Reyes from using or revealing information she learned in the consultation. Her intake memo contains Priya's litigation theory, her damages numbers, and her suspicion about the backdated agreement-exactly the information Marcus would want.
Step 2: Disqualification. Rule 1.18(c) prohibits representation of a client with materially adverse interests in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful. Priya's internal emails and her $74,000 transfer theory are significantly harmful to Marcus; the two matters are literally the same matter.
Step 3: Can Reyes escape through consent or screening? Rule 1.18(d) offers two routes. The first is informed consent from both the affected prospective client and the client, confirmed in writing-Marcus's consent alone is worthless, and Priya, now an adverse party, will not give it. The second permits representation where the lawyer took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary and is timely screened with written notice. That route fails here because Reyes is the lawyer who holds the information; a lawyer cannot screen herself, and a one-person office has no one to screen her from. Closed files do not create walls.
Practical advice: decline, return Marcus's materials unread, and do not disclose anything Priya said.
2. Suppose the January consultation had been handled by a different lawyer in a five-attorney firm, and that lawyer had stopped the intake as soon as Priya began describing the backdating theory. Could the firm accept Marcus? What would it have to do?
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This is where Rule 1.18(d)(2) becomes usable, but only with careful execution.
The two conditions. First, the consulted lawyer must have taken reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to decide whether to represent Priya-cutting off the discussion once the backdating accusation surfaced is the model behavior. Second, the firm must timely screen that lawyer from the Marcus matter and give written notice to Priya.
What screening actually requires in a small firm:
- No access to the Marcus file, whether paper or electronic; restrict permissions in the document management system, not just ask politely.
- No conversation about the matter, no hallway updates, no inclusion in fee distributions attributable to that matter.
- A written screen memo circulated to everyone in the firm and a dated log.
- Written notice to Priya that identifies the screen and gives enough information to object.
The residual risk. The screening safe harbor is not a license to gamble. If the consulted lawyer had already reviewed the spreadsheet and the emails-as in the original facts-the firm should assume disqualification, because the information is significantly harmful and no screen cures what the screener already knows and could inadvertently reveal. Note also that imputed disqualification under Rule 1.10 does not automatically follow a Rule 1.18 taint the way it follows a Rule 1.7 or 1.9 conflict; the screening provision is the whole point.
Bottom line: fact-sensitive. Cut off early and screen properly, and the firm may proceed; free-ranging intake followed by a screen is not enough.
3. Change the facts: Reyes actually represented Priya for three weeks, obtained the spreadsheet in discovery, and then withdrew over a fee dispute. Marcus now asks her to take his defense. Same answer?
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No, and the reason is that the governing rule changes once the relationship forms.
Rule 1.9, not 1.18. Priya is now a former client. Under Rule 1.9(a) a lawyer who has represented a client in a matter may not represent another person in the same or a substantially related matter in which that person's interests are materially adverse, unless the former client gives informed consent confirmed in writing. This is the same matter, and the interests are directly adverse. No consent, no representation.
Rule 1.9(c) independently bars using confidential information of the former client to the disadvantage of the former client, and bars revealing it.
Why screening does not help. Screening in current-client conflicts (Rule 1.10) does not rescue a lawyer who is personally disqualified under Rule 1.9; the personally disqualified lawyer's conflict is imputed to the firm, and the usual cure is client consent, not a wall. That is the key structural difference from the prospective-client setting in the previous question.
Additional exposure. The discovery materials and anything learned in the three weeks expand the pool of confidential information, and the withdrawal over a fee dispute may itself generate a Rule 1.5 and Rule 1.16 issue about whether the file and any unearned fee were handled correctly.
Answer to Marcus: decline and explain that a conflict exists without Priya's informed written consent, which is not realistically obtainable.