Topic:

Conflict of interest – former client; preservation of confidential information. Matrimonial attorney interviewed by wife in divorce action later interviewed by husband for appeal of judgment in same action.

Digest:

During the initial stages of separation and divorce proceedings, a law firm interviewed a wife who discussed and divulged important information with respect to finances. The Firm was not retained and the case proceeds to a full trial on finances. After trial, the husband discharged his counsel and sought to retain the Firm interviewed by the wife to conduct his appeal. An attorney who gains pertinent financial information from a wife in an interview during the initial stages of separation and divorce proceedings but is not retained should consider the wife as a former client and may not represent the husband in an appeal of the Court’s decision without the consent of both parties after full disclosure.

Code Provisions:

DR 5-108(A)(1)

DR 5-108(B)(1)

DR 5-108(B)(2)

DR 4-101(B)

Facts Presented:

The inquiring attorney’s law firm deals solely in the areas of matrimonial and family law including appellate work in the same fields. During the initial stages of separation and divorce proceedings between a husband and wife, the latter interviewed with the firm seeking legal representation for the divorce. At the initial client interview, the wife discussed and divulged pertinent financial information. Parental access and custody rights were not germane to this case and these issues were not discussed at the meeting. After the initial meeting, the wife decided not to hire the firm to represent her in the divorce proceedings. The case ultimately went to trial and the Court issued a substantial financial award to the wife.

The husband, unhappy with the Court’s determination, sought to appeal the decision. The husband would like to hire the firm which initially interviewed his wife. The inquiring attorney indicated that he learned certain information at the initial meeting with the wife which would justify a motion by the husband to re-open the case on the issue of finances. Moreover, the inquiring attorney points out that some of the financial information disclosed by the wife at the initial interview is not documented, and as such, these facts cannot be found on the trial record or record on appeal.

Analysis:

DR 5-108(A)(1) reads in pertinent part: “a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure, thereafter represent another person in the same or substantially related matter in which the person’s interests are materially adverse to the interests of the former client.”

First, a determination needs to be made as to whether the wife should be considered a former client. When an attorney interviews a potential client and the person provides the attorney with confidential information during the interview but does not retain the attorney, the person should be considered a former client. Simon’s Code of Professional Responsibility Annotated, 2007 ed., 962. Here, the prospective client discussed financial matters which should be considered confidential information. Thus, the wife should be regarded as a former client.

Next, a determination must be made as to whether the firm’s representation of the husband in the appeal would be considered the “same or substantially related matter.” There is no single test to determine the meaning of “substantially related” but the most commonly used test is whether the attorney could have gained confidential information in the former representation which would be useful against the former client in the present representation. Simon’s Code of Professional Responsibility Annotated at 970. Clearly, this inquiry presents a situation where the representation should be considered the “same or substantially related matter.” The inquiring attorney admittedly gained knowledge from the wife which, if used against her, would likely overturn the Court’s decision which was favorable for the wife. This information would be useful against the wife in the present representation of the husband.

The next requirement in determining the applicability of DR 5-108(A)(1) is deciding whether the prospective client’s interests are “materially adverse” to the interests of the former client. It is apparent that the husband’s interests are “materially adverse” from his spouse’s interests. The husband and wife are opposing one another in formal litigation. Both are seeking a favorable decision from the Court with respect to finances. Therefore, their interests should be considered “materially adverse.”

Thus, DR 5-108(A)(1) is wholly applicable to this set of facts and the inquiring attorney will be disqualified from representing the husband in the appeal unless the wife and husband have both consented after full disclosure pursuant to either DR 5-108(A) or (B). Id. DR 5-108(B) states, “Except with the consent of the affected client after full disclosure, a lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by DR 4-101(B) that is material to the matter.”

It should be noted that a conflict of interest is not obviated simply because the appellate record is closed. The disqualification standard extends beyond strict conflict of interest principles to include concerns over the potential use of information for “strategic purposes” and the “appearance of impropriety.” See, Seely v. Seely, 129 A.D.2d 625, 514 N.Y.S.2d 110 (2d Dept 1987); Leisman v. Leisman, 208 A.D.2d 688, 617 N.Y.S.2d 807 (2d Dept 1994); Rose Ocko Foundation, Inc. v. Liebovitz, 155 A.D.2d 426, 547 N.Y.S.2d 89 (2d Dept 1989). The availability of the information provided by the wife at the initial interview with the Firm – although perhaps unavailable to the appellate court through the record – might give a strategic advantage to counsel in preparation or delivery of the appellate argument. Moreover, the appearance of impropriety is manifest in the fact that the wife had every reason to presume that the attorney to whom she was confiding her information would not later be her adversary in the same matter.

Conclusion:

The attorney cannot oppose the wife, his former client, in the husband’s appeal unless he receives the consent of both parties after full disclosure of the circumstances at hand. This conclusion remains consistent notwithstanding the fact that the inquiring attorney has learned important financial information from the wife which may help the husband in overturning the Court’s decision, so long as that information is fully disclosed to the former and current client.

[Approved by the full Committee on December 19, 2007]