## Facts

- A corporate principal (Kay Kang) met with attorney Peter Y. Lee for about three hours in February 2008 to discuss possible representation in pending litigation against a third party (the “Koryeo” dispute).
- Lee declined the representation; no attorney-client relationship was formed.
- The participants disputed what was discussed: Lee asserted the consultation was limited to the Koryeo matter and involved no confidential information beyond what was needed to evaluate that case; Kang asserted she discussed broader confidential business and legal matters.
- About eighteen months later, in August 2009, a contractor (O Builders & Associates, Inc.) sued Kang’s company (Yuna Corp. of N.J.) to collect payment for construction and renovation work at Yuna’s restaurant.
- Lee appeared as counsel for O Builders in the collection action.
- Yuna moved to disqualify Lee, claiming that his prior consultation with Kang created a prospective-client conflict under RPC 1.18.

## Issues

1. Under RPC 1.18, must a lawyer be disqualified from representing a client adverse to a former prospective client when no attorney-client relationship formed, based on alleged confidential information shared during the consultation?
2. Were the prior consultation matter and the later collection action the same or substantially related?
3. Did the moving party show the lawyer received information that could be significantly harmful to the former prospective client in the later litigation?

## Decision

- The Supreme Court of New Jersey affirmed the denial of disqualification.
- The Court held Yuna failed to carry its burden under RPC 1.18(c) to show both that the matters were the same or substantially related and that Lee received information that could be significantly harmful to Yuna in the collection action.
- The Court emphasized that disqualification is an extraordinary remedy and disqualification motions require cautious scrutiny due to their tactical potential and their interference with a party’s choice of counsel.

## Legal Principles

- A person who consults with a lawyer about possible representation is a “prospective client” under RPC 1.18(a), even if no representation follows.
- Under RPC 1.18(b), a lawyer who has consulted with a prospective client may not use or reveal information learned in the consultation, subject to limited exceptions.
- Under RPC 1.18(c), adverse representation is barred only if (1) the later representation is in the same or a substantially related matter and (2) the lawyer received information from the prospective client that could be significantly harmful in that matter.
- The party seeking disqualification bears the burden to present concrete, nonconclusory facts establishing the RPC 1.18(c) elements.
- Disqualification is a severe remedy and should not be ordered absent a sufficient factual showing of a real conflict under the governing rule.

## Conclusion

Because the earlier consultation concerned unrelated litigation and Yuna did not identify specific information from the consultation that could be significantly harmful in the later construction-payment dispute, RPC 1.18 did not require disqualification, and Lee was permitted to continue representing O Builders.


O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109, 19 A.3d 966 (N.J. 2011)