After the Oscar nominated Netflix film Marriage Story made its debut, many clients have developed a great number of questions concerning their approach to their own divorce. One of these questions is the disqualifications of an attorney that their spouse has previously consulted with about their divorce. Conflicting out attorneys from representation of your spouse is a revenge tactic, however, your attorney can explain the rules regarding this conflict of interest as well as the development of the laws to negate this revenge tactic in certain cases.
Rule 4-1.18 of The Rules of Professional Conduct governs the duties of a lawyer owed to prospective clients. Overall, there is a general disqualification of a lawyer, if a spouse has a confidential conversation during a consultation with an attorney. However, exceptions may apply to still allow representation of the spouse by the attorney or one within the same firm. There are different layers to the application of this rule, first beginning with the qualification of a prospective client. In order to be considered a prospective client, the individual must seek out a consultation with the intent of possibly forming a client-lawyer relationship. This is where the individual who intentionally conflicts out an attorney will not be able to invoke this specific rule. As the comments to this subsection, provide that the individual seek out the consultation in good faith, and “a person who consults a lawyer simply with the intent of disqualifying the lawyer from the matter, with no intent of possibly hiring the lawyer, has engaged in a sham and should not be able to invoke this rule to create a disqualification.”
However, even if your spouse did seek out a lawyer’s professional representation, in good faith, and a relationship does not ensue, this rule provides that the lawyer may not use any information learned from the consultation with the prospective client and may not represent another individual with adverse interests in the same or substantially the same matter. However, representation may be allowed “if both the affected client and the prospective client have given informed consent, confirmed in writing; or the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and written notice is promptly given to the prospective client.”
Therefore, even though it is possible for an attorney you wish to represent you in your divorce case, be conflicted out by your spouse, there are ways to circumvent this rule especially, if such disqualification was done with the intent to harm your representation options. However, it is still critical to be proactive in finding adequate legal representation in a timely manner to avoid such issues. Set up a consultation with one of our experienced attorneys today to discuss your specific case, and the aggressive representation we provide to our clients.
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