Is My Consultation with Nick Oberheiden Confidential?

The consultation is privileged from the moment it begins. Before a retainer is signed, before a fee is discussed, before the physician has decided whether to engage counsel at all, the attorney-client privilege attaches to the communication and protects its contents from disclosure. This is not a courtesy extended by the firm. It is a legal obligation imposed by the rules of professional conduct in every jurisdiction in the United States, and it applies with equal force whether the consultation lasts fifteen minutes or three hours, whether it occurs by telephone or in person, whether the physician retains the attorney or never speaks with the attorney again.

The question arrives with a particular frequency from physicians who have received a target letter, a grand jury subpoena, or a visit from DEA diversion investigators. They wish to discuss the matter with counsel. They are uncertain whether the act of discussion itself creates a record that the government might obtain. The hesitation is reasonable. It is also, in its legal premise, unfounded.

The Privilege Precedes the Relationship

ABA Model Rule 1.18 governs the duties an attorney owes to a prospective client, a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. The rule imposes a confidentiality obligation that mirrors the obligation owed to a retained client. Information learned from a prospective client shall not be used or revealed, except as the rules would permit with respect to information of a former client. The duty does not await the execution of an engagement letter. It does not depend on whether the attorney agrees to accept the case. It does not require the exchange of money.

The doctrine is older than the rule that codified it. Federal courts recognized the privilege over prospective client communications long before the American Bar Association formalized the obligation in 2002. The principle rests on a simple necessity: if a person could not speak candidly with an attorney without first retaining that attorney, the act of seeking counsel would require the disclosure of the very information the person sought counsel to protect, and the privilege would contain a gap at its point of greatest need.

The physician who telephones a defense attorney to describe a DEA investigation is protected by the privilege before the attorney has spoken a single word in response. The protection attaches to the act of consultation, not to the formation of the engagement.

What the Privilege Covers in an Initial Call

Everything the physician communicates to the attorney during the consultation for the purpose of obtaining legal advice is privileged. The facts of the investigation. The identity of the agents who appeared at the practice. The prescribing conduct that may be under scrutiny. The names of patients, the volume of controlled substance prescriptions, the documentation practices the physician believes may be at issue. The physician’s own assessment of whether the conduct was lawful. The physician’s fear that it was not.

The privilege covers the attorney’s response as well. The legal analysis the attorney provides, the preliminary assessment of the physician’s exposure, the strategic observations about how such investigations tend to proceed: these communications are protected with equal force. The privilege is bilateral. It shelters what flows in both directions.

In seven of the initial consultations our attorneys conducted last quarter with physicians under DEA investigation, the physician began the conversation by asking what was safe to disclose. The answer, in each instance, was the same. Within the consultation itself, the physician should disclose everything that bears on the legal situation, because the attorney cannot provide competent preliminary guidance on a partial factual record, and because the privilege ensures that nothing said during the consultation can be compelled from the attorney by the government, by a grand jury, or by any opposing party in any proceeding.

The Obligation Survives the Decision Not to Retain

A physician who consults with three defense attorneys before selecting one has created a privileged communication with each of them. The two attorneys not selected remain bound by the confidentiality obligation under Rule 1.18. They may not disclose the information the physician provided. They may not use it in any manner adverse to the physician. They are, if we are being precise, prohibited from representing another client in the same or a substantially related matter if they received information from the physician that could be significantly harmful to the physician in that matter, unless they obtained informed consent or the information can be adequately screened within the firm.

The protection is structural, not discretionary. An attorney who violates the duty of confidentiality to a prospective client faces disciplinary proceedings, malpractice liability, and disqualification from the matter. The obligation does not diminish because the attorney-client relationship never formed. In the architecture of the ethical rules, the consultation itself generates the duty, and the duty persists regardless of what follows.

Physicians who consult with multiple firms during the initial phase of an investigation are not diluting their privilege. They are extending it.

The Conditions That Must Be Present

The privilege over a prospective client communication requires the same conditions as the privilege over a retained client communication. The person must be seeking legal advice. The communication must be made in confidence. The communication must be directed to an attorney acting in a legal capacity.

A conversation at a dinner party where a physician mentions a DEA matter to an attorney who happens to be seated at the same table is not a privileged consultation. The social context negates the expectation of confidentiality. A discussion in a hallway outside a conference room, within earshot of other attendees, is not privileged. The absence of confidential conditions defeats the privilege at the moment of utterance.

In March 2025, the Washington State Bar published an analysis of Rule 1.18 that examined the threshold question of when a person becomes a prospective client. The determination rests on whether the person consulted with the attorney about the possibility of forming a client-lawyer relationship. A person who provides information to a law firm during a general marketing interaction, who fills out a website form without receiving a response, or who attends a seminar where a lawyer speaks about a legal topic has not become a prospective client. A person who telephones the firm, identifies a legal matter, and communicates facts relevant to that matter for the purpose of determining whether to retain counsel has become one. The line is functional, not ceremonial.

The Third Party in the Room

The most common mechanism by which physicians compromise the privilege over an initial consultation without intending to is the presence of a third party. A physician who places the call to counsel on speakerphone while an office manager listens has introduced a person whose presence may destroy the confidential character of the communication. A physician who brings a spouse to the consultation preserves the privilege only if the spouse’s presence falls within a recognized exception, and the exceptions are narrower than the physician assumes.

We addressed the fragility of privilege in the presence of third parties in our discussion of whether the attorney-client privilege is absolute. The principle applies with identical force to initial consultations. The spouse who accompanies the physician to the first meeting with defense counsel may, in certain jurisdictions, be treated as an agent of the client whose presence does not defeat the privilege. The office manager who overhears the telephone call is, in no jurisdiction, such an agent. The distinction rests on whether the third party’s presence was reasonably necessary to the consultation or to the attorney’s ability to provide legal advice.

An accountant whose expertise is required for the attorney to comprehend the physician’s financial situation may attend without destroying the privilege, provided the accountant has been retained by the attorney under a proper Kovel arrangement. A friend who accompanies the physician for emotional support occupies no recognized category of protection.

Place the call from a private room. Conduct the consultation alone. If another person’s presence is necessary, discuss that necessity with the attorney before the consultation begins.

What the Government Cannot Compel

A federal prosecutor cannot subpoena the attorney to testify about the contents of the initial consultation. A DEA agent cannot request that the attorney disclose what the physician said during the call. A grand jury cannot compel the attorney to reveal the identity of a prospective client who consulted about a matter but did not retain the firm, except in narrow circumstances involving fee disputes or the crime-fraud exception, circumstances that do not arise from the ordinary act of consulting counsel about a pending or anticipated investigation.

The crime-fraud exception, which we have examined in prior articles, requires the government to demonstrate that the communication was made in furtherance of a crime or fraud. A physician who contacts an attorney to discuss a DEA investigation and to seek legal advice about the physician’s rights, obligations, and exposure is not furthering a crime. The physician is exercising the right to counsel that the legal system regards as fundamental to its operation. The crime-fraud exception permits no intrusion into a consultation where the purpose is to obtain legal guidance about past or ongoing government scrutiny.

The distinction matters because physicians sometimes fear that the act of consulting a defense attorney will itself be perceived as evidence of guilt, that the government will interpret the call as an indication that the physician has something to conceal. Federal law prohibits the government from drawing adverse inferences from the exercise of constitutional and evidentiary privileges. The consultation is not a signal. It is the exercise of a right the system was constructed to protect.

The Difference Between Privilege and Secrecy

The privilege does not render the fact of the consultation secret. It renders the contents of the consultation protected. The government may learn that a physician consulted with defense counsel. In most circumstances, this fact is not privileged, because it is not a communication made for the purpose of obtaining legal advice; it is a historical event. What the government cannot learn, absent waiver or an applicable exception, is what was said during the consultation.

The physician who tells a colleague, I spoke with an attorney about the DEA matter, has not waived the privilege. The physician who tells a colleague, the attorney told me the government’s case depends on patient records from 2021 and 2022, has disclosed the substance of a privileged communication to an unprivileged person. That disclosure may constitute a waiver. The colleague may now be compelled to testify about what the physician relayed, and the testimony will reveal not only the physician’s statement but the attorney’s strategic assessment.

The boundary between disclosing the existence of the consultation and disclosing its substance is the boundary the physician must maintain. One sentence crosses it.

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The Physician Who Waited

In the spring of 2024, before the Department of Justice announced the latest round of healthcare fraud enforcement actions, a physician in the Eastern District contacted our firm after fourteen months of DEA scrutiny. The physician had known about the investigation for over a year. During that period, the physician had spoken with a practice administrator, two colleagues in the same specialty, and a spouse about the substance of the investigation, the prescribing patterns at issue, and the physician’s own assessment of the conduct the government was examining. None of those conversations was privileged. Each of those persons was subject to a grand jury subpoena. The physician had not consulted counsel because the physician was not certain whether the consultation itself would remain confidential.

The consultation was confidential. The fourteen months of unprotected conversations that preceded it were not. What the physician lost during that interval of hesitation cannot be recovered, and the government, which had already issued subpoenas to two of the persons the physician had confided in, had no obligation to explain what the physician’s caution had cost.

The hesitation was understandable.

It was also the source of the exposure it was intended to prevent.

Confidentiality as Architecture

The initial consultation with defense counsel is not merely a protected conversation. It is the point at which the architecture of privilege begins to take its particular shape in the physician’s particular circumstances. The attorney identifies which prior communications may already be outside the privilege. The attorney establishes the protocols for future communications, ensuring that subsequent discussions with staff, with accountants, with compliance personnel occur within structures that preserve their protected character. The attorney determines whether a Kovel arrangement is necessary for the practice’s accountant, whether a joint defense agreement with co-defendants would serve or imperil the physician’s interests, whether the physician’s employer has conducted an internal investigation whose Upjohn warnings the physician may not have understood at the time they were delivered.

This architectural work begins in the first conversation. It cannot begin before the first conversation, because the attorney requires the facts that the physician provides during the consultation to determine which protections are needed. The consultation is both the diagnosis and the first act of construction.

The privilege protects you during that conversation. The conversation determines how the privilege will protect you in everything that follows.

For a physician, pharmacist, or healthcare provider who is under investigation or who has reason to believe an investigation may be forthcoming, the initial consultation with defense counsel experienced in DEA and healthcare fraud matters is where that protection is established. The conversation is confidential. It has been confidential since the common law first recognized that a person must be able to speak to a lawyer without fear that the words will travel beyond the room. What the law constructed centuries ago remains intact. The question is not whether the protection exists. The question is how long the physician will wait before claiming it.