Weilbacher v Taulung [2009] FMKSC 4; 16 FSM Intrm. 318 (Kos. S. Ct. Tr. 2009) (11 February 2009)

KOSRAE STATE COURT TRIAL DIVISION

CIVIL ACTION NO. 13-07

REBECCA H. WEILBACHER, on behalf of minor LANJA KYOMILEEN H. WEILBACHER,
Plaintiff,

vs.

STONEY S. TAULUNG,
Defendant.

MEMORANDUM OF DECISION

Aliksa B. Aliksa
Chief Justice

Hearing: February 10, 2009
Decided: February 11, 2009

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 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.