Court finds prospective clients who never retain services can't claim former client protections
The Employment Court has rejected an attempt to disqualify opposing counsel based on brief preliminary contact, ruling on February 9, 2026, that prospective clients who never retain a law firm cannot claim "former client" status.
Judge M.S. King dismissed Julian Chevalier's application to remove lawyer J. Unsworth and law firm Horsley Christie from representing his former employer, Necta NZ Limited, despite Chevalier having approached the firm for assistance months earlier.
The case of Necta NZ Limited v Chevalier arose after Chevalier contacted Horsley Christie in late November to early December 2024 seeking help with his employment dispute against Necta. On December 11, 2024, he sent the firm's receptionist a Google Drive folder containing his personal grievance documents, submissions to the Employment Relations Authority, draft pleadings, and case notes including his litigation strategy.
A legal assistant, Ms. Katene, spoke with Chevalier for approximately five minutes and advised him to pay a retainer to secure services. No retainer eventuated. Horsley Christie later informed Chevalier the firm could not take his matter.
Eight months later, on August 29, 2025, Necta filed a notice showing Unsworth now represented the company and two intended defendants – Mr. Law, Necta's sole director, and Surge Management Group Ltd.
Chevalier sought to disqualify Unsworth, arguing he qualified as a "former client" under the Lawyers and Conveyancers Act rules prohibiting lawyers from acting against former clients when they hold confidential information.
Judge King rejected this interpretation outright. "Mr Chevalier's interpretation would effectively allow a litigant to disqualify any lawyer they had merely contacted from acting for the opposing party," the judge wrote. "This is an unworkable application of r 8.7 and would unfairly deprive litigants of choice of counsel."
The court found the definition of "former client" does not extend to prospective clients where no instructions have been accepted.
Judge King noted nothing "extraordinary or egregious" existed in acting against a party who made inquiries where no instructions were accepted.
However, the court acknowledged Chevalier had some expectations of confidentiality as a prospective client. The firm's duty of confidence commences when a person makes a disclosure to the lawyer in relation to a proposed retainer, whether or not a retainer eventuates.
Unsworth addressed confidentiality concerns through sworn affidavits stating he had not accessed Chevalier's Google Drive folder or read his follow-up email from January 6, 2025. He undertook not to read the email and confirmed it had not been seen by the defendants. Katene swore she could not remember accessing the folder or discussing confidential information during her brief call with Chevalier.
The court found the firm had established an effective information barrier. Judge King encouraged Chevalier to revoke access to the Google Drive folder and withdraw his email if concerns remained.
The court applied established principles that the threshold for removal of counsel is high, requiring something extraordinary to warrant that course, and that litigants should not face deprivation of their choice of counsel without good reason.
Judge King concluded no basis existed for removing Unsworth from acting for Necta or the intended defendants, finding no extraordinary circumstances justified that course.
The application was declined. Costs were reserved.
