Advance Disclaimer of Client-Lawyer Relationship
Opinion rules that although a lawyer asks a prospective client to sign a form stating that no client-lawyer relationship will be created by reason of a free consultation with the lawyer, the lawyer may not subsequently disclaim the creation of a client-lawyer relationship and represent the opposing party.
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?
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.