KOSRAE STATE COURT TRIAL DIVISION

Cite as Weilbacher v. Taulung, 16 FSM Intrm. 318 (Kos S. Ct. Tr. 2009)

[16 FSM Intrm 318]

REBECCA H. WEILBACHER, on behalf of

minor LANJA KYOMILEEN H. WEILBACHER,

Plaintiff,

vs.

STONEY S. TAULUNG,

Defendant.

CIVIL ACTION NO. 13-07

MEMORANDUM OF DECISION

Aliksa B. Aliksa

Chief Justice

Hearing: February 10, 2009

Decided: February 11, 2009

[16 FSM Intrm 319]

APPEARANCES:

For the Plaintiff:            Sasaki L. George, Esq.

                                      Micronesian Legal Services Corporation

                                      P.O. Box 38

                                      Tofol, Kosrae FM 96944
 

For the Defendant:         Lyndon Cornelius

                                      P.O. Box 346

                                      Tofol, Kosrae FM 96944


 

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HEADNOTES

Attorney and Client ) Disqualification of Counsel

    If there is a present lawyer-client relationship with an adverse party, the perceived conflict would be analyzed under provisions of Model Rule of Professional Conduct 1.7, and if the law firm does not have a present lawyer-client with the adverse party but has represented the adverse party in the past, the adverse party is a former client and the perceived conflict would be analyzed under the provisions of Rule 1.9. The issue regarding whether a lawyer-client relationship existed is a question of fact. Weilbacher v. Taulung, 16 FSM Intrm. 318, 321 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    An individual whose initial intake interview ended when the attorney advised the individual that the law firm was not going to assist him was neither a past nor present client of the law firm but was a prospective client seeking legal help that was turned down. Weilbacher v. Taulung, 16 FSM Intrm. 318, 321 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    Prospective clients receive some protection. The issues of confidentiality and conflicts of interest are intertwined in determining whether a lawyer is disqualified from representing a client as a result of preliminary discussions with the other side. A duty of confidentiality exists and applies whenever a lawyer agrees to consider whether to take a prospective client’s case. Weilbacher v. Taulung, 16 FSM Intrm. 318, 321 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    Prospective clients should receive some, but not all, the protections given to a client because a lawyer’s discussions with a prospective client are often limited in the time and depth of exploration, do not reflect full consideration of the prospective client’s problems, and leave both prospective client and lawyer free (and sometimes required) to proceed no further. Weilbacher v. Taulung, 16 FSM Intrm. 318, 321 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

Anything a lawyer learns during a consultation must be kept confidential and a determination of whether a lawyer-client relationship has been formed is undertaken. In determining whether this initial interview formed a client-lawyer relationship it is essential to know how much was disclosed in the initial meeting. Weilbacher v. Taulung, 16 FSM Intrm. 318, 322 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    It is necessary for prospective clients to reveal information to attorneys during an initial

[16 FSM Intrm 320]

consultation prior to the decision about formation of a client-lawyer relationship. The lawyer must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer wants to undertake. The attorney has a duty not to use any information learned during this initial intake even if the attorney does not proceed with representation. Weilbacher v. Taulung, 16 FSM Intrm. 318, 322 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    Initial intakes are vital in determining if a firm can represent a client or not and receiving this information is not, in itself, enough to trigger disqualification. Disqualification should not occur unless extensive or sensitive information about the potential representation was revealed. Only if the consultation involves information that could be significantly harmful to the person who consulted the lawyer will the lawyer be disqualified from representing someone else in the matter. Weilbacher v. Taulung, 16 FSM Intrm. 318, 322 (Kos. S. Ct. Tr. 2009).

Attorney and Client ) Disqualification of Counsel

    When the movant did not show that the information he told the law firm was of significant use or critical to the case and when the law firm did an effective screening job to prevent any conflict from occurring since no significantly harmful information was revealed, no conflict of interest exists and the law firm should not be disqualified, but anything the law firm did learn in the initial intake is confidential and it is under an obligation to keep it confidential. Weilbacher v. Taulung, 16 FSM Intrm. 318, 322 (Kos. S. Ct. Tr. 2009).

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COURT’S OPINION

ALIKSA B. ALIKSA, Chief Justice:

    On October 16, 2008, the Defendant filed a Motion to Disqualify MLSC as Plaintiff’s Counsel. The Plaintiff filed an Opposition to Defendant’s Disqualification Motion on October 27, 2008. This Court heard arguments on February 10, 2009, and based on the testimony and evidence, the Defendant’s Motion to Disqualify MLSC as Plaintiff’s Counsel is Denied.

    The Plaintiff, Rebecca Weilbacher, sought legal assistance from the MLSC to represent her in the above-captioned case on January 24, 2007, and filled out a client intake form. MLSC agreed to provide legal representation following a group discussion and work on her claim commenced. At this point, the Plaintiff was a client of MLSC. On January 31, 2007, the Plaintiff informed MLSC that she wanted Edwin Mike to assist her in the matter and on February 1, 2007, the current action was filed with Edwin Mike as the attorney of record. At this point, the Plaintiff became a former client of MLSC. On February 20, 2007, the Defendant, Stoney Taulung, sought legal assistance from MLSC and filled out an intake form. Attorney Canney Palsis conducted an initial interview with the Defendant. In the Defendant’s motion, he alleges "some facts on merits of the case were disclosed to MLSC" at this meeting. Plaintiff’s opposition states that "no confidential information was given to MLSC" at this initial interview. After a brief interview, Attorney Palsis found out that the Defendant was seeking legal service on the same subject matter as a former client, Plaintiff Weilbacher, and the interview was ended. MLSC had a discussion about the Defendant’s application and decided they could not accept his application for assistance as his objective was materially adverse to the interest of a former client, Plaintiff Weilbacher. Sometime in late August 2008, Plaintiff Weilbacher again sought assistance from MLSC in the current matter. Attorney Sasaki George of MLSC filed an appearance on September 4, 2008, in the above-captioned case and is now the attorney of record.

[16 FSM Intrm 321]

    The Defendant argues in his motion that a conflict of interest arose when the Defendant was interviewed by Attorney Palsis at MLSC because MLSC now represents the Plaintiff. The Defendant argues a conflict exists under either Rule 1.7 or Rule 1.9 of the Model Rules of professional Conduct since the Defendant "was or is a client of MLSC" and the Plaintiff is now represented by MLSC.

    This Court has adopted the Model Rules of Professional Conduct as adopted by the American Bar Association in August 1983 as amended through 1995 in its General Court Order 2001-5. Rule 1.7 states that "[a] lawyer shall not represent a client if the representation of that client will be directly adverse to another client . . . ." MRPC R. 1.7 (1983, as amended 1995). Rule 1.9 states that "[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation." MRPC R. 1.9 (1983, as amended 1995).

    If there is a present lawyer-client relationship with the Defendant, the perceived conflict would be analyzed under provisions of Rule 1.7 (Conflict of Interest: General Rule). If MLSC does not have a present lawyer-client with the Defendant but MLSC has represented the Defendant in the past, the Defendant is a former client and the perceived conflict would be analyzed under the provisions of Rule 1.9 (Conflict of Interest: Former Client). The issue regarding whether a lawyer-client relationship existed is a question of fact.

    In the present case, the Defendant is not currently a client of MLSC. Furthermore, the Defendant has not shown that he is a former client of MLSC. The defendant argues that MLSC formerly represented the Defendant in this matter. Plaintiff’s counsel states that MLSC has never represented the Defendant in this matter and he only filed out a client intake form. This form expressly states that "I understand that MLSC has not agree[d] to represent me until I have met with an attorney or counselor who has signed this agreement and given me a copy of it." Counselor Canney Palsis did the initial interview and advised the Defendant that MLSC was not going to be able to assist him as they had already been contacted by the Plaintiff in the matter. The client intake form was signed by the Defendant but never signed by an attorney or delivered to the Defendant. MLSC decided to reject the Defendant’s application 2 days after the initial intake. Thus, the Defendant was never a client of MLSC in this matter, rather a prospective client seeking legal help but was turned down. The Defendant is neither a past nor a present client, implicating provision of neither Rule 1.7 nor 1.9, however the Defendant was a prospective client and prospective clients receive some protection.

    The issues of confidentiality and conflicts of interest are intertwined in determining whether a lawyer is disqualified from representing a client as a result of preliminary discussions with the other side. A duty of confidentiality exists and applies whenever a lawyer agrees to consider whether to take a prospective client’s case. See MRPC R. 1.6 (1983, as amended 1995). The Restatement (Third) of the Law Governing Lawyers states that the prospective client should receive some, but not all, the protections given to a client.

A lawyer’s discussions with a prospective client are often limited in the time and depth of exploration, do not reflect full consideration of the prospective client’s problems, and leave both prospective client and lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.

[16 FSM Intrm 322]

RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 15 cmt. b (2000). The current edition of the Model Rules of Professional Conduct includes a rule (Rule 1.18) dealing with prospective clients and whether a conflict of interest arose from the initial interview. Before Rule 1.18 was adopted in 2002, anything a lawyer learns during a consultation must be kept confidential and a determination of whether a lawyer-client relationship has been formed is undertaken.

    Anything that was learned by MLSC from the Defendant’s initial interview must be kept confidential. In determining whether this initial interview formed a client-lawyer relationship it is essential to know how much was disclosed in the initial meeting. The interview between the Defendant and MLSC lasted less than 5 minutes and was solely to find out what the individual wanted. There was not a lengthy conversation between Attorney Palsis and the Defendant because the interview was stopped as soon as Attorney Palsis found out the Defendant was inquiring about help on the same subject matter as the Plaintiff who, at the time, was a former client of MLSC. Furthermore, the Defendant did not state that anything of material importance was discussed.

    It is necessary for prospective clients to reveal information to attorneys during an initial consultation prior to the decision about formation of a client-lawyer relationship. The lawyer must learn such information to determine whether there is a conflict of interest with an existing client and whether the matter is one that the lawyer wants to undertake. The attorney has a duty not to use any information learned during this initial intake even if the attorney does not proceed with representation. Initial intakes are vital in determining if a firm can represent a client or not and receiving this information is not, in itself, enough to trigger disqualification.

    MLSC has a procedure in place to screen clients and did just that in this case. Therefore the focus in this case is whether the information received by MLSC from the Defendant could harm the Defendant’s interests. Disqualification should not occur unless extensive or sensitive information about the potential representation was revealed. The Restatement (Third) of the Law Governing Lawyers states that only if "the consultation involves information that could be significantly harmful to the person who consulted the lawyer will the lawyer be disqualified from representing someone else in the matter." Restatement (Third) of the Law Governing Lawyers § 15(2) (2000).

    The Defendant did not show that the information he told MLSC was of significant use or critical to the case. MLSC did an effective screening job to prevent any conflict from occurring whether it is a current client, former client or prospective client. Because no significantly harmful information was revealed, no conflict of interest exists; counsel should not be disqualified. Anything MLSC did learn in the initial intake is confidential and are under an obligation to keep it confidential. The Defendant’s Motion to Disqualify MLSC as counsel is therefore Denied.

___________________________

Footnotes:

1. There is no mention whether the Defendant is a former client in an unrelated matter and therefore the analysis is limited to whether he was a former client in the present subject matter.

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