Realty. Haines and Krieger requested that Fenn and Howard obtain 

advice on behalf of all the named defendants in the Merit complaint. On 

December 17, 2010, Fenn and Howard met with Adam Levine of the Law 

Office of Daniel Marks to discuss the demand letter and Merit complaint. 

The parties dispute many of the facts surrounding this consultation. The 

real parties in interest allege that Fenn and Howard provided Levine with 

confidential and in-depth details regarding facets of H&K Realty. The 

petitioners allege that Fenn and Howard never indicated they were 

seeking advice on the behalf of Haines and Krieger. After Merit Realty 

filed its complaint, all of the defendants chose different representation 

than Levine and the Law Office of Daniel Marks. 

A year later, Levine, on behalf of Michael Richman, a former 

client of the H&K Law Firm; Luzviminda 0. Dapat; and Michael Richman 

Marketing Company, LLC, (collectively, the Richman Parties) filed a 

complaint against Haines, Krieger, the H&K Law Firm, and Haines & 

Krieger Loan Modifications, LLC (collectively, the H&K Parties). The 

Richman Parties had been involved in a joint venture regarding loan 

modifications with Haines and Krieger that dissolved in November 2010. 

On July 20, 2011, the H&K Parties filed a motion to disqualify 

the Law Office of Daniel Marks based on their status as prospective 

clients to Levine and an alleged conflict of interest under Nevada Rule of 

Professional Conduct (NRPC) 1.18. The H&K Parties alleged that the 

Richman Parties' complaint included specific allegations arising out of 

Fenn and Howard's discussion with Levine during their initial 

consultation about the formation and operation of H&K Realty. 

On January 30, 2012, the district court entered its order 

granting the motion to disqualify and nearly four months later, denied the 

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Richman Parties' motion for rehearing. It did not hold an evidentiary 

hearing regarding the contested issues of fact surrounding the information 

disclosed during Fenn and Howard's initial consultation with Levine. The 

Richman Parties filed an original petition for writ of mandamus 

challenging the district court's orders, arguing that the district court 

manifestly abused its discretion by disqualifying their counsel under 

NRPC 1.18 and abused its discretion by failing to hold an evidentiary 

hearing as to contested issues of fact. 

The district court did not manifestly abuse its discretion in disqualifying 

the Richman Parties' counsel pursuant to NRPC 1.18 

"A writ of mandamus is properly used to challenge a district 

court's order disqualifying counsel." Brown v. Eighth Judicial Dist. Court, 

116 Nev. 1200, 1206, 14 P.3d 1266, 1271 (2000). "A writ of mandamus is 

available to compel the performance of an act that the law requires or to 

control an arbitrary or capricious exercise of discretion." Nevada Yellow 

Cab Corp. v. Eighth Judicial Dist. Court, 123 Nev. 44, 49, 152 P.3d 737, 

740 (2007); see also NRS 34.160. 

The district court has broad discretion in attorney 

disqualification matters, and we will not overturn the district court's 

decision absent a manifest abuse of that discretion. Nevada Yellow Cab 

Corp., 123 Nev. at 54, 152 P.3d at 743. Disqualification may be necessary 

to prevent disclosure of confidential information that may be used to an 

adverse party's disadvantage. Id. at 53, 152 P.3d at 743. "[D]oubts should 

generally be resolved in favor of disqualification." Brown, 116 Nev. at 

1205, 14 P.3d at 1270. District courts are faced with a "difficult task of 

balancing competing interests: the right to be represented by counsel of 

one's choice, each party's right to be free from the risk of even inadvertent 

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disclosure of confidential information, and the public's interest in the 

scrupulous administration of justice." Id. at 1205, 14 P.3d at 1269-70. 

To prevail on a motion for disqualification, the moving party 

must establish: (1) "at least a reasonable possibility that some specifically 

identifiable impropriety did in fact occur,' and (2) 'the likelihood of public 

suspicion or obloquy outweighs the social interests which will be served by 

a lawyer's continued participation in a particular case." Brown, 116 Nev. 

at 1205, 14 P.3d at 1270 (quoting Cronin v. Eighth Judicial Dist. Court, 

105 Nev. 635, 641, 781 P.2d 1150, 1153 (1989), disapproved of by Nevada 

Yellow Cab Corp., 123 Nev. at 54 n.26, 152 P.3d at 743 n.26). 

NRPC 1.18(b) states that even when no attorney-client 

relationship is formed, a lawyer shall not use or reveal information 

learned in a consultation with a prospective client, "except as Rule 1.9 

would permit with respect to information of a former client." NRPC 

1.18(c) prohibits lawyers from representing clients with interests that are 

materially adverse to those of prospective clients in the same or 

substantially related matters when the lawyer receives "information from 

the prospective client that could be significantly harmful to that person in 

the matter. . . ." Further, NRPC 1.18(c) disqualifies all lawyers in the 

'Rule 1.9 prohibits an attorney's representation of a new client if the 

matter is (1) substantially similar to that of a former client, (2) materially 

adverse to that former client, and (3) the attorney acquired confidential 

information from the former client that is relevant to the new matter. In 

these cases, the former client must give informed, written consent before 

the attorney can represent the new client. See NRPC 1.9(a) and (b)(3). 

NRPC 1.9(c) prohibits lawyers from using or revealing information 

relating to a former client except as the "Rules would permit or require 

with respect to a client." In other words, the former client would need to 

provide informed, written consent. 

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firm of the disqualified lawyer, except for narrow exceptions. These 

exceptions allow representation if: (1) the affected client and prospective 

client give informed, written consent; or (2) the lawyer who received the 

information took reasonable measures to avoid exposure to more 

disqualifying information, is timely screened, and written notice is given 

to the prospective client. See NRPC 1.18(d). 

Given the similarities between NRPC 1.9 and NRPC 1.18, we 

turn to case law discussing disqualification under NRPC 1.9 for guidance. 

In Nevada Yellow Cab Corp., we concluded that disqualifications under 

NRPC 1.9 require the moving party to show: "(1) that it had an attorneyclient relationship with the lawyer, (2) that the former matter and the 

current matter are substantially related, and (3) that the current 

representation is adverse to the party seeking disqualification." 123 Nev. 

at 50, 152 P.3d at 741. Thus, disqualifications under NRPC 1.18 should 

require the moving party to show that (1) it was a prospective client of the 

lawyer, (2) the current matter and the former matter are substantially 

related, (3) the current representation is adverse to the party seeking 

disqualification, and (4) the lawyer received confidential information that 

could be significantly harmful to the moving party. See NRPC 1.18(c); see 

also Factory Mut. Ins. Co. v. APComPower, Inc., 662 F. Supp. 2d 896, 900 

(W.D. Mich. 2009) (concluding that motions to disqualify premised on RPC 

1.18 "should be analyzed the same as a motion to disqualify pursuant to a 

former client relationship with the additional requirement that the lawyer 

receive information that could be 'significantly harmful"); Sturdivant v. 

Sturdivant, 241 S.W.3d 740, 746-47 (Ark. 2006) (applying Arkansas' 

version of RPC 1.18, a wife's lawyer in a custody matter was disqualified 

because the husband had consulted with a member of the lawyer's firm 

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and disclosed confidential information concerning the children and former 

wife that could be significantly harmful to the husband, the moving party). 

Substantial evidence supported the district court's finding that the 

H&K Parties were prospective clients for purposes of NRPC 1.18 

The Richman Parties argue that the H&K Parties were not 

prospective clients, and NRPC 1.18 does not recognize a prospective client 

by agency. We disagree. 

We review a .district court's factual determinations 

deferentially and will not overturn such findings if supported by 

substantial evidence, unless clearly erroneous. Ogawa v. Ogawa, 125 Nev. 

660, 668, 221 P.3d 699, 704 (2009). NRPC 1.18(a) defines a prospective 

client as "[a] person who discusses with a lawyer the possibility of forming 

a client-lawyer relationship with respect to a matter is a prospective 

client." We have previously recognized third-party standing in 

disqualification matters and numerous jurisdictions recognize prospective 

clients by agency or through third-parties. See Liapis v. Second Judicial 

Dist. Court, 128 Nev. „ 282 P.3d 733, 737-38 (2012) (citations 

omitted) (concluding that standing to bring a motion to disqualify based on 

a third-party conflict of interest involves establishing that (1) the lawyer's 

representation impacts a legal interest because a "specifically identifiable 

impropriety has occurred," (2) an ethical breach "infects the litigation," or 

(3) there is a "breach of the duty of confidentiality owed to the complaining 

party, regardless of whether a lawyer-client relationship existed"); see also 

Jack Eckerd Corp. v. Dart Grp. Corp., 621 F. Supp. 725, 732 (D. Del. 

1985); Matter of King Res. Co., 20 B.R. 191, 198 (D. Colo. 1982); In re 

Modanlo, 342 B.R. 230, 235-36 (D. Md. 2006); Harkobusic v. Gen. Am. 

Transp. Corp., 31 F.R.D. 264, 266 (W.D. Pa.1962); Grand Jury Proceedings 

Under Seal v. United States, 947 F.2d 1188, 1191 (4th Cir. 1991). 

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"n; d I -E; • '-'731.5s:-`",.'4,`.*"5,3:11CIrCW=1"1".211SW51051r- 
We conclude that substantial evidence supported the district 

court's finding that Fenn and Howard consulted with Levine regarding the 

potential liability of the defendants in the Merit complaint, which included 

Fenn and Howard as well as the H&K Law Firm, H&K Realty, Haines, 

and Krieger. The parties dispute what was actually discussed at the 

initial consultation, but, at the initial consultation, Fenn produced the 

Merit complaint and demand letter that alleged wrongdoing by Fenn, 

Howard, Haines, Krieger, H&K Realty, and the H&K Law Firm. Fenn 

also listed his place of employment as H&K Realty on the new client 

information sheet during the initial consultation, and Levine sent the 

draft retainer agreement to Fenn's H&K Realty email address. Levine 

should have been aware of the potential for representing all defendants 

involved. Haines and Krieger attest that they asked Fenn and Howard to 

obtain legal advice because the Merit demand letter required a response 

by December 17, 2010. Haines and Krieger did not seek the advice of 

separate counsel before this deadline. The H&K Law Firm reimbursed 

Fenn for the consultation. These facts provided substantial evidence to 

support the district court's finding that all defendants became prospective 

clients of Levine and the Law Office of Daniel Marks. 

Substantial evidence supported the district court's findings, under 

NRPC 1.18, that the current matter is substantially similar to the 

former matter, the current representation would be adverse to the 

H&K Parties, and confidential information was received and could 

be harmful to the H&K Parties 

The Richman Parties argue that their interests were not 

materially adverse to Fenn or Howard and did not involve the "same or 

substantially-related matter" to the Merit action. The Richman Parties 

further argue that respondents have failed to demonstrate how any 

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information communicated by Fenn or Howard would be significantly 

harmful or that an impropriety occurred. 2We disagree. 

Whether two matters are substantially related requires the 

district court to make a factual determination. See Waid v Eighth 

Judicial Dist. Court, 121 Nev. 605, 610, 119 P.3d 1219, 1223 (2005) 

(discussing how to determine whether two matters were substantially 

related as it relates to disqualification under former SCR 159, equivalent 

to NRPC 1.9). In Waid, we adopted a three-part test for determining 

whether a former and present matter are substantially related: the 

district court must "(1) make a factual determination concerning the scope 

of the former representation, (2) evaluate whether it is reasonable to infer 

that the confidential information allegedly given would have been given to 

a lawyer representing a client in those matters, and (3) determine whether 

the information is relevant to the issues raised in the present litigation." 

Id. 

The district court, here, found that "[i]t is 'reasonable to infer' 

that Mr. Levine received confidential information from Messrs. Fenn and 

Howard during the meeting on December 17, 2010 [sic] related to the 

2The Richman Parties argue that the H&K Parties waived their 

right to seek disqualification by waiting too long to seek disqualification. 

However, the H&K Parties could not adequately file a motion for 

disqualification before the Richman Parties filed their complaint because 

its contents would have been unknown. The H&K Parties filed their 

motion to disqualify just over a month after the Richman Parties filed 

their complaint on June 10, 2011. Delay alone is insufficient to establish a 

waiver and the H&K Parties did not relinquish a known right. See 

Nevada Yellow Cab Corp., 123 Nev. at 48-50, 152 P.3d at 740-41 (holding 

hat a delay of two years was not sufficient to waive rights when counsel's 

conduct did not demonstrate a clear intent to relinquish its right to 

challenge the potential conflict). 

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formation and operation of H&K Realty," and such information "is 

relevant to the issues raised in this litigation." 

The H&K Parties contend that there were at least five 

allegations in the Richman complaint directly relating to the confidential 

information regarding the formation and operation of H&K Realty that 

Fenn and Howard conveyed to Levine. The Richman complaint alleges 

that the Richman Parties "developed the idea that they could become a 

one-stop shop for shorts [sic] sales, residential loan modifications and 

commercial loan modifications" and approached the H&K Parties about 

the idea. The complaint also alleges that "[f]rom February 2010 through 

approximately September 2010 Plaintiffs Richman and Dapat organized 

and created the Haines and Krieger short sale department. Defendant 

Haines informed Plaintiffs that they wanted Dapat to do all of the listings 

and pay the Defendants a kick back in the form of a marketing fee." The 

Richman complaint further alleges that "[the H&K Parties] gave control of 

the short sale department to someone other than Plaintiff Dapat." The 

H&K Parties assert that this reference to "someone other" is H&K Realty, 

Fenn, and Howard. The Richman complaint's cause of action for quantum 

merit alleges that the Richman Parties provided uncompensated services 

to the H&K Parties, including the creation of the H&K short sale 

department and loan modification department in Arizona. 

There is sufficient information to support the district court's 

determination that Fenn and Howard consulted with Levine regarding the 

potential liability regarding all defendants in the Merit complaint, that 

the information given to Levine would have related to the formation and 

operation of H&K Realty, that this information would have been given to 

the H&K Parties' counsel in the Merit action, and that it is relevant to the 

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present litigation. There is sufficient evidence to support a conclusion that 

the Merit action is substantially similar to the Richman Parties' action. 

See Waid, 121 Nev. at 610, 119 P.3d at 1223. 

The district court also found that "[i]nformation learned by 

Mr. Levine and the Marks Law Office from Messrs. Fenn and Howard 

could be significantly harmful to the Defendants [the H&K Parties] . . . if 

used in this matter." Specifically, information related to the formation 

and operation of H&K Realty could be harmful. The district court further 

found that Levine, the Law Office of Daniel Marks, and the Richman 

Parties did not provide informed, written consent regarding the 

representation. We conclude that substantial evidence supported the 

district court's finding that the Richman Parties' interests are materially 

adverse, and the information learned could be significantly harmful to the 

H&K Parties. 

Based on the record, the district court also weighed the 

varying interests of the parties and that of the public as required by 

Brown. See Brown v. Eighth Judicial Dist. Court, 116 Nev. 1200, 1205, 14 

P.3d 1266, 1269-70 (2000). Therefore, we conclude that the district court 

did not manifestly abuse its discretion when it granted the H&K Parties' 

motion to disqualify because it properly considered the competing 

interests involved. See Nevada Yellow Cab Corp., 123 Nev. at 54, 152 P.3d 

at 743 (noting that the district court was more familiar with the case than 

this court and had the best opportunity to evaluate the validity of a 

disqualification) . 3 

3The Richman Parties also argue that Levine can still be timely 

screened from this matter, so this court should not impute disqualification 

to the Law Office of Daniel Marks. We conclude that it is too late to 

continued on next page... 

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The district court did not abuse its discretion in determining that an 

evidentiary hearing was not required 

The Richman Parties argue that the district court should have 

conducted an evidentiary hearing to resolve disputed issues of material 

fact prior to the disqualification to determine what Fenn and Howard 

actually told Levine. The Richman Parties argue that NRPC 1.18 requires 

at least some disclosure of the information discussed at the prospective 

client consultation. We disagree. 

A district court, in determining the nature of a hearing, should 

ensure that the parties present sufficient information to support its 

decision. Bahena v. Goodyear Tire & Rubber Co., 126 Nev. , 235 

P.3d 592, 601 (2010). 4Under NRPC 1.9, we have explained that "[i]n 

proving that a prior representation is substantially related to present 

litigation . . . the moving party is not required to divulge the confidences 

actually communicated, nor should a court inquire into whether an 

...continued 

properly screen Levine. See Ryan's Express v. Amador Stage Lines, 128 

Nev. , 279 P.3d 166, 172 (2012) (discussing that "the timing of 

implementation of screening measures in relation to the occurrence of the 

disqualifying event is relevant in determining whether the screen was 

properly erected"). Levine has already worked on substantive portions of 

the case, made multiple appearances, and filed motions on behalf of the 

Richman Parties. The record also does not indicate that Levine took any 

reasonable steps to avoid exposure to disqualifying information. 

4Recently, we concluded that an evidentiary hearing was required 

when determining whether a lawyer has been properly screened. Ryan's 

Express, 128 Nev. at , 279 P.3d at 173. This case is distinguishable 

because screening determinations are not as likely to involve confidential 

attorney-client communications. Therefore, the determination of whether 

to hold an evidentiary hearing involving disqualifications based on 

prospective clients remains in the district court's discretion. 

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attorney actually acquired confidential information in the prior 

representation which is related to the current representation." Robbins v. 

Gillock, 109 Nev. 1015, 1018, 862 P.2d 1195, 1197 (1993); see also NRPC 

1.6(a) (a "lawyer shall not reveal information relating to representation of 

a client unless the client gives informed consent."). "The court should 

instead undertake a realistic appraisal of whether confidences might have 

been disclosed in the prior matter that will be harmful to the client in the 

later matter." Robbins, 109 Nev. at 1018, 862 P.2d at 1197. 

We conclude that the district court acted within its discretion 

in declining to hold an evidentiary hearing since the disqualificationL 

matter is not case-concluding. See Bahena, 126 Nev. at , 235 P.3d at 

600-01. Prospective clients meeting with an attorney must have the 

"utmost confidence" that confidential information disclosed to an attorney 

will remain confidential. See Ryan's Express, 128 Nev. at , 279 P.3d at 

169. "One purpose of disqualification is to prevent disclosure of 

confidential information that could be used to a former client's 

disadvantage." Nevada Yellow Cab Corp., 123 Nev. at 53, 152 P.3d at 743. 

Forcing prospective clients to divulge confidential information at a hearing 

could lessen a client's ability and willingness to candidly communicate 

with his or her attorney during initial consultations. 

The district court was very aware of the importance of client 

confidences and the attorney-client privilege; and hesitant to force a client, 

former client, or prospective client to take the stand under oath and testify 

to confidential matters and the substance of their interactions. It made its 

findings based on substantial evidence, including numerous declarations 

and affidavits, pleadings, the information sheet, unsigned retainer 

agreement, notes from the initial consultation, emails, and letters. Among 

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Gibbons 

Saitta 

J. 

these, the district court found that it was reasonable to infer that: (1) Fenn 

and Howard consulted with Levine regarding the liability of the draft 

complaint in the Merit action on behalf of the H&K Parties, and (2) Levine 

received confidential information from Fenn and Howard regarding the 

formation and operation of H&K Realty that was relevant to the issues 

raised in this litigation. It further found that information Levine and the 

Law Office of Daniel Marks learned from Fenn and Howard could be 

significantly harmful to the H&K Parties if used by the Richman Parties 

in this matter. Conducting an evidentiary hearing to determine specifics 

regarding what Fenn and Howard said to Levine would run counter to our 

analysis that opposing counsel under NRPC 1.9 are not required to divulge 

confidences actually communicated. See Robbins, 109 Nev. at 1018, 862 

P.2d at 1197. 

Accordingly, we ORDER the petition DENIED. 5 

5We have considered the parties' remaining arguments and conclude 

they are without merit. 

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cc: Hon. Kenneth C. Cory, District Judge 

Law Office of Daniel Marks 

Bailey Kennedy 

Ogletree Deakins Nash Smoak & Stewart 

Eighth District Court Clerk 

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