Rule 1.18 Applies; No Misconduct Found

An attorney’s single meeting with a prospective client did not create a disqualifying conflict to later adverse representation for bar disciplinary purposes, according to an opinion of the North Dakota Supreme Court.

Shaun Bergquist filed a disciplinary complaint against [attorney] Kuntz, alleging she had a conflict of interest when she agreed in July 2012 to represent him in a proceeding to modify his parenting schedule against his child’s mother, Sara Wyrick, after Kuntz had consulted with his child’s maternal grandfather, Paul Berger, in May 2011 about appealing the initial primary residential responsibility determination and received a $100 retainer to take the appeal.

Kuntz’s response to Bergquist’s complaint stated she met with him for an initial consultation on June 18, 2012, to review his file for assessment of the merits and the procedure to modify his parenting schedule with Wyrick, also known as Hickey and formerly known as Berger. Kuntz asserted her normal practice for all initial consultations was to run a conflict check and advise the individual that she was meeting in a limited capacity to provide basic information for an informed decision on whether to proceed with retaining a lawyer. According to Kuntz, she clearly advised individuals during initial consultations that she was not their lawyer as a result of the consultation and she did not then agree to be their lawyer. Kuntz stated she was subsequently retained by Bergquist in July 2012 to represent him in his motion to modify his parenting schedule against Wyrick, and she prepared the case for a hearing.

 Shortly before a scheduled April 2013 hearing on Bergquist’s motion, the district court, on motion by Wyrick, disqualified Kuntz from representing him in that proceeding because she had met with Berger in May 2011 about representation after the initial primary residential responsibility determination. The court explained: (1) “the purpose of the consultation [with Berger] was to determine whether Ms. Kuntz would represent the Defendant in an effort to change the custodial decision reached in the course of the first trial;” (2) “Berger paid a $100 consultation fee;” (3) “discussions included a retainer fee that Ms. Kuntz would require;” (4) there were no subsequent contacts and “Defendant apparently decided she could not afford the fee or for other reasons did not respond;” and (5) Kuntz did not recall the consultation with Berger, but agreed that she routinely met with potential clients for consultations and charged an initial fee of $100.

The court dismissed the ethics charges against the attorney. The meeting was governed by Rule 1.18 (duties to prospective clients) rather than Rule 1.9 (duties to former clients)

Here, Kuntz explained she advised potential clients during every initial consultation that she was meeting with them in a limited capacity and that she was not their attorney as a result of the consultation. She said she did not agree to become a potential client’s attorney until review of the information and deadlines, if any, discussed in an initial consultation, review and signature of a fee contract, and payment of a retainer in an amount determined during the consultation. She stated that during her initial consultation with Berger, she did not obtain or utilize any information that was adverse to the interests of Berger or Wyrick. She asserted she did not form an attorney-client relationship with Berger, and she did not have an express agreement for representation, a reasonable expectation of representation, or representation implied from the circumstances of that consultation. Kuntz’s consultation notes and the handwritten notes from a telephone conference leading up to Kuntz’s initial consultation with Berger reflect the disclosure of general information about the earlier custody proceeding, but do not disclose the exchange of any legal advice or confidential information. The evidence in this record does not establish Kuntz provided legal advice to Berger during the initial consultation or the full extent of the information that may have been exchanged during that consultation. The evidence in this record does not clearly and convincingly establish that the nature and the circumstances of the information exchanged during Kuntz’s initial consultation with Berger created a lawyer-client relationship.

(Mike Frisch)