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Kuntz v. Disciplinary Bd. of Supreme Court of North Dakota, 869 N.W.2d 117, 2015 ND 220

Facts

Sandra Kuntz represented Shaun Bergquist in a modification of his parenting schedule after previously consulting with Bergquist's child's maternal grandfather, Paul Berger, about custody issues. Kuntz charged Berger a $100 consultation fee but claimed she did not form an attorney-client relationship with him. The Inquiry Committee found that Kuntz had violated professional conduct rules by representing Bergquist against Wyrick, the child's mother, after consulting with Berger.

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.

Issue

Did Kuntz's consultation with Paul Berger create an attorney-client relationship that would preclude her from representing Shaun Bergquist in a matter against Berger's interests?

The primary issue raised by the parties' arguments is whether Kuntz's consultation with Berger created a lawyer-client relationship and established duties to a 'former client' under N.D.R. Prof. Conduct 1.9, or whether the consultation established duties to a 'potential client' under N.D.R. Prof. Conduct 1.18.

Rule

Under N.D.R. Prof. Conduct 1.9, 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 in writing.

Rule 1.9(a), N.D.R. Prof. Conduct, describes a lawyer's duties to a 'former client' and provides 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 in writing.'

Analysis

The court analyzed whether Kuntz's consultation with Berger established a lawyer-client relationship. It concluded that Kuntz's consultation did not create such a relationship, as she did not provide legal advice or receive significantly harmful information from Berger. The court emphasized that the existence of an attorney-client relationship depends on the specific circumstances of the case, including the conduct of the parties and the nature of the information exchanged.

We conclude the evidence in this record does not clearly and convincingly establish Kuntz's initial consultation with Berger established a lawyer-client relationship and invoked duties to a former client. Rather, the evidence in this record establishes Kuntz's consultation with Berger resulted in a 'potential client' relationship under N.D.R. Prof. Conduct 1.18, and under that rule, Kuntz was not prohibited from representing a client with an adverse interest in the same or a substantially related matter unless she acquired significantly harmful information from the potential client.

Conclusion

The Supreme Court dismissed the complaint against Kuntz, concluding that there was not clear and convincing evidence that she violated the rules of professional conduct.

We conclude there is not clear and convincing evidence Kuntz violated the applicable rules of professional conduct, and we dismiss the complaint.

Who won?

Sandra Kuntz prevailed in the case because the court found that her prior consultation with Berger did not establish an attorney-client relationship, and she did not receive significantly harmful information that would preclude her representation of Bergquist.

Kuntz argued the record is inadequate to determine whether there is clear and convincing evidence supporting an admonition.

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