                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                JOSEPH POHL AND MEGAN CLANCY,                          No. 64725
                HUSBAND AND WIFE,
                Petitioners,
                vs.
                THE NINTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                DOUGLAS; AND THE HONORABLE
                                                                           FILED
                NATHAN TOD YOUNG, DISTRICT                                 JAN 2 8 2016
                JUDGE,
                                                                          TRACE K. LINDEMAN
                Respondents,                                               K OF SUPREME COURT
                                                                       CLERr
                                                                      BY
                and                                                         DEPUTY CLERK

                CARY LEE CHRISTIE AND BAMBI
                ALPERSON CHRISTIE, HUSBAND
                AND WIFE,
                Real Parties in Interest.


                          ORDER DENYING PETITION FOR WRIT OF MANDAMUS

                             This is an original petition for a writ of mandamus challenging
                a district court order disqualifying petitioners' counsel under Nevada Rule
                of Professional Conduct 1.18(c). We accord the district court broad
                discretion in attorney disqualification matters, Nev. Yellow Cab Corp. v.
                Eighth Judicial Dist. Court, 123 Nev. 44, 54, 152 P.3d 737, 743 (2007), and
                must determine whether the district court manifestly abused its discretion
                in disqualifying counsel based on a consultation with a former prospective
                client.
                             On June 11, 2013, real party in interest Cary Christie called
                attorney Thomas J. Hall to discuss his rights to use a stone pathway,

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                 located on the property belonging to his neighbors, petitioners Joseph Pohl
                 and Megan Clancy. For the 15 years he and his wife, Bambi Christie,
                 resided at their current property, the Christies used the stone pathway to
                 access the beachfront area of Lake Tahoe. This changed after petitioners
                 bought their property in 2012 and subsequently blocked the Christies'
                 access. During his 20-minute consultation with Hall, Cary Christie
                 discussed "the pathway at issue, the usage history of the pathway, and the
                 legal ownership of the pathway," as well as "legal theories, facts, and a
                 course of action," and scheduled a meeting for further discussion.
                              On June 13, 2013, Hall was scheduled to meet with the
                 Christies at their property. The morning of that meeting, however, Hall
                 discovered that petitioners were the neighbors against whom the Christies
                 sought an easement, and because petitioners were Hall's current clients,
                 he informed the Christies of his conflict and declined to represent them.
                 The next day, Hall sent a letter to the Christies explaining that he has
                 represented petitioners for over ten years, and stating:
                              It was not until yesterday that I looked at the map
                              and APN numbers, and realized that your
                              concerns are with fencing the pathway to Lake
                              Tahoe, which fencing was placed by Joseph Pohl.
                              Thus, under the circumstances, I am unable to
                              represent your interest in this matter in any
                              regard.
                 Hall sent a copy of this letter to petitioners.
                              A little over a month later, on July 26, 2013, petitioners—
                 represented by Hall—filed a complaint to quiet title against multiple
                 defendants, including the Christies. The Christies filed a counterclaim to
                 quiet title, seeking a prescriptive easement on the stone pathway. The
                 Christies also moved to disqualify Hall, which the district court granted.
                 The district court's order recognized that the Christies and Hall dispute
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                    the "extent and correct characterization of the consultation."
                    Nevertheless, the district court concluded that the language of NRPC 1.18,
                    which states whether information "could be significantly harmful," favors
                    a finding of disqualification based on the prejudice it may have on the
                    Christies.
                                    A petition for writ of mandamus is the proper vehicle for
                    challenging an attorney disqualification order. Nev. Yellow Cab, 123 Nev.
                    at 49, 152 P.3d at 740. When deciding attorney disqualification motions,
                    district courts bear the difficult and delicate burden "of balancing
                    competing interests: the individual right to be represented by counsel of
                    one's choice, each party's right to be free from the risk of even inadvertent
                    disclosure of confidential information, and the public's interest in the
                    scrupulous administration of justice." Id. at 53, 152 P.3d at 743 (internal
                    quotation omitted). As a general rule, doubts should "be resolved in favor
                    of disqualification." Id. (internal quotation omitted).
                                    Here, the district court disqualified Hall on the grounds that
                    he violated paragraphs (b) and (c) of RPC L18, 1 which provides in relevant
                    part:
                                    (a) A person who consults with a lawyer about the
                                    possibility of forming a client-lawyer relationship
                                    with respect to a matter is a prospective client.
                                    (b) Even when no client-lawyer relationship
                                    ensues, a lawyer who has learned information
                                    from a prospective client shall not use or reveal
                                    that information, except as Rule 1.9 would permit
                                    with respect to information of a former client.


                            1 The
                               2014 amendments of RPC 1.18 were stylistic and do not affect
                    our analysis.


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                            (c) A lawyer subject to paragraph (b) shall not
                            represent a client with interests materially
                            adverse to those of a prospective client in the same
                            or a substantially related matter if the lawyer
                            received information from the prospective client
                            that could be significantly harmful to that person
                            in the matter. . . .
                (Emphases added.) It is undisputed that Cary Christie is considered a
                former prospective client, falling within the purview of RPC 1.18. Thus,
                this court must determine whether the district court manifestly abused its
                discretion in deciding that Hall violated paragraphs (b) and (c) of RPC
                1.18.
                            Paragraph (b) of RPC 1.18 concerns the revelation of
                confidential information. The Christies argue that Hall's written letter
                violated paragraph (b) because it revealed information that Hall learned
                in his initial consultation with Cary Christie. Specifically, it alerted
                petitioners of the substance of Cary Christie's consultation by stating:
                "your concerns are with fencing the pathway to Lake Tahoe, which fencing
                was placed by Joseph Pohl." Hall argues that "there is nothing in Rule
                1.18 that would prohibit a lawyer from informing an existing client that he
                previously had been contacted by another party regarding a potential
                claim against the client." Hall cites to State ex rel. Thompson v. Dueker,
                346 S.W.3d 390, 396 (Mo. Ct. App. 2011), to support his argument that "a
                conflict does not occur because of the mere Tact of consultation.' Hall's
                quotation is correct, but incomplete. Dueker provides that the mere fact a
                former prospective client had a consultation with an attorney does not, by
                itself, create a conflict of interest. Id. Rather, a conflict occurs "because of
                the passing of confidential information from the prospective client to the
                lawyer." Id. (internal quotation omitted).

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                                   It is generally accepted that the fact a prospective client
                       consulted with an attorney is not protected by the attorney-client
                       privilege, and, therefore, not confidentia1. 2 See United States v. Robinson,
                       121 F.3d 971, 976 (5th Cir. 1997) ("The fact of representation, or an
                       attempt at securing it, is generally not within the privilege."); State v.
                       Adamson, 665 P.2d 972, 985 (Ariz. 1983) ("Preliminary matters such as
                       the fact of consultation, as well as the dates, places, and means of
                       consultation, are usually outside the coverage of the privilege."). However,
                       the substance of a consultation is protected by the attorney-client privilege
                       and, therefore, must be maintained confidentially to comply with RPC
                       1.18(b). 3 Paragraph (b) incorporates the exceptions regarding the
                       revelation of information in RPC 1.9(c), which allow an attorney to use



                              2 In Nevada, the attorney-client privilege encompasses prospective
                       clients. See NRS 49.045 (defining "client" to include one "who consults a
                       lawyer with a view to obtaining professional legal services from the
                       lawyer"); see also NRS 49.095.

                             3 United   States ex rel. Barko v. Halliburton Co., 74 F. Supp. 3d 183,
                       189 (D.D.C. 2014) ("[A] consultation with a lawyer does not make
                       underlying facts privileged, even though the substance of the discussion
                       about those facts would be."); Baez-Eliza v. Institut° Psicoterapeutico de
                       P.R., 275 F.R.D. 65, 72 (D.P.R. 2011) ("Mhe attorney-client privilege
                       applies only to communications that reveal the content of a legal
                       consultation."); Adamson, 665 P.2d at 985 (stating that the prosecutor's
                       question whether the witness met with an attorney about representation
                       was legitimate, but a question asking whether conversation between the
                       witness and the attorney concerned the bombing involved the substance of
                       the conversation, which was privileged); State v. Sheppard, 763 P.2d 1232,
                       1234 (Wash. Ct. App. 1988) ("The substance of the consultations for which
                       the fees were charged is protected by the privilege, and will remain
                       privileged despite a requirement that the amount, source and manner of
                       payment of the fee be disclosed.").


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                 confidential information against a former client if "these Rules would
                 permit or require" it or "when the information has become generally
                 known."
                             Here, Hall revealed the substance of Cary Christie's
                 consultation to petitioners. Without Cary Christie's permission, Hall
                 disclosed the content of the consultation and breached confidentiality
                 when he sent a copy of the letter to petitioners. Hall's defense that the
                 confidential information "inevitably would have been disclosed during the
                 course of discovery" does not warrant a preemptive disclosure of
                 confidential client communications. RPC 1.9(c)(1) allows information to be
                 used against a former client "when the information has become generally
                 known," not before. (Emphasis added.) In this case, Hall disclosed the
                 substance of the consultation in his letter dated June 14, 2013, over a
                 month before petitioners filed their complaint to quiet title. Hall
                 maintains that petitioners' complaint to quiet title was filed based on an
                 issue unrelated to his June 14 letter. However, the timing of the
                 complaint to quiet title is suspect, as it was filed a little over a month after
                 Hall's letter informing petitioners that the Christies sought legal advice
                 regarding petitioners' property. It was, therefore, not a manifest abuse of
                 discretion for the district court to find that Hall received confidential
                 information from the Christies that could have been significantly harmful
                 to them.
                             In addition to violating paragraph (b) of RPC 1.18, the
                 Christies argue that Hall violated paragraph (c), which concerns whether
                 representation is appropriate. Hall claims that the district court abused
                 its discretion because it appeared to rely on RPC 1 9, instead of RPC 1.18.
                 This claim, however, is meritless. Although there is significant overlap

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                between 1.9 and 1.18, the district court distinguished the two rules by
                stating that RPC 1.18 requires that "the lawyer received information from
                the prospective client that could be significantly harmful."      The other
                elements of paragraph (c)—that the lawyer "not represent a client with
                interests materially adverse to those of a prospective client in the same or
                a substantially related matter"—are undisputedly present in this case.
                Therefore, the district court focused exclusively on whether Hall received
                information that could be significantly harmful to the Christies. The
                district court answered that question in the affirmative based on the
                submitted affidavits.
                            Although the parties refer to the content of the consultation in
                generalized terms, the district court found, and neither party disputes,
                that Cary Christie and Hall had "at least one extended telephone
                conversation." Hall argues that the district court abused its discretion
                because the Christies did not provide specific evidence of the alleged
                confidential information disclosed in the consultation that could be
                significantly harmful to them. Hall cites to Dueker, which states: "specific
                evidence of the nature and substance of the information is required in
                Rule 4-1.18 proceedings to establish that it is 'significantly harmful;'
                speculative or hypothetical claims of harm are not enough." 346 S.W.3d at
                396. Here, however, the Christies did provide specific evidence regarding
                the nature and substance of the consultation.      Dueker does not require
                that the former prospective client divulge the specific statements made,
                just the "nature and substance."     Id.   The affidavits of Cary Christie
                satisfy this requirement by discussing the general topics of the potential
                claim for an easement.



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                             Therefore, the district court did not manifestly abuse its
                 discretion in concluding that Hall received confidential information that
                 could be significantly harmful to the Christies. Accordingly, we
                             ORDER the petition DENIED.




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                 cc: Hon. Nathan Tod Young, District Judge
                      Law Offices of Thomas J. Hall
                      Ailing & Jillson, Ltd.
                      Douglas County Clerk




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