To Represent, Or Not Represent: That Is The Question

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Can one attorney represent both spouses in a divorce? This issue presents itself in a multitude of scenarios: the proverbial “simple divorce” or merely reviewing a settlement agreement prepared by both spouses. As my colleague noted, if prospective clients request that you represent them both, even if it’s “simple” or merely reviewing their agreement, “[t]he answer is a resounding, no.”

On April 14, 2021, the Appellate Division approved for publication a decision which took up the task of answering a similar, yet more nuanced question: can an attorney who had an initial consultation with a prospective client now represent the party adverse to that prospective client? The Appellate Division’s answer was similarly a resounding, no. However, the reasoning behind the decision to affirm the trial court’s order disqualifying the attorney is an important lesson for family law attorneys. Indeed, it offers important caveats for when the answer could be “it depends.”

Greebel v. Lensak

We often have consultations without being retained thereafter.  In Greebel v. Lensak, that is precisely what happened. Nine years prior to being retained by the Defendant to file a motion to vacate a judgment and set aside the parties’ settlement agreement, the attorney had an initial consultation with the Plaintiff. They discussed the prospects of filing a complaint for palimony.

Palimony involves matters where the parties are not married, but in a long-term, romantic relationship and there is a promise of continued support. 

Here are the facts:

  • During an initial consultation, the prospective client raised concerns she had about the parties’ finances, lifestyle, assets and income.
  • The attorney gave advice to the Plaintiff not to marry the Defendant due to the potential for pre-marital assets, debts, income or lifestyle not being considered in any future divorce proceedings.
  • The attorney calculated what the Plaintiff’s potential relief would look like in the event she moved forward with requesting palimony.
  • Nine years later: Plaintiff filed a complaint for palimony using a different attorney and eventually a settlement agreement was entered into and incorporated into a final judgment.
  • Five years later: Defendant hired the attorney that Plaintiff originally consulted with and filed a motion to vacate the final judgment, set aside the agreement, and re-open discovery pursuant to Rule 4:50-1.
  • The Defendant alleged that Plaintiff intentionally misrepresented and concealed her finances during the settlement negotiations.
  • Plaintiff moved to have the motion dismissed and disqualify the attorney disqualified, relying upon her certification and a 2013 e-mail to her current attorney where she specifically mentioned the consultation and how she followed the attorney’s advice not to marry Defendant.

Trial Court

The trial court found that there was sufficient evidence that a consultation took place based upon Plaintiff’s certification and the e-mail. Defendant’s attorney was disqualified since Plaintiff disclosed “significantly harmful information” about the parties’ finances and Defendant’s continued promises of support—all of which were “substantially related” to the current issues in Defendant’s motion to vacate. The pleadings prepared by that attorney were dismissed and sealed. Defendant was barred from sharing them with any new counsel.

Appellate Division

On appeal, Defendant raised several issues. Pertinently, that the trial court erred in disqualifying his attorney. The Appellate Division disagreed. Disqualification decisions are reviewed de novo pursuant to City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). It was Defendant’s contention that Plaintiff failed to provide the information disclosed to his attorney in the consultation with specificity and that the same information would have been discoverable. The Appellate Division disagreed.

The Appellative Division recited the provisions of R.P.C. 1.18(a) and (b):

  1. Plaintiff consulted with the attorney with the end goal of forming a client-lawyer relationship and was therefore a prospective client under R.P.C. 1.18(a).
  2. The lawyer learned information during the consultation with the prospective client and therefore had a duty not to use or reveal any of that information under R.P.C. 1.18(b).

Next, the Appellate Division turned to O Builders & Assocs., Inc. v. Yuna Corp. of N.J., 206 N.J. 109 (2011). There, the Supreme Court of New Jersey laid out a two-step analysis to determine whether disqualification is justified:

  1. The information disclosed during any consultation must be the same or substantially related to the present lawsuit; and,
  2. The disclosed information must be significantly harmful to the former client in the present lawsuit.

Additionally, the former client—or, in this case, the former prospective client—must make more than “bald and unsubstantiated assertions” regarding her disclosures. Attorneys and clients should pay close attention to the Supreme Court’s definition within the two-step analysis:

  • Substantially related: if the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent represent of parties adverse to the former client or if the facts relevant to the prior representation are both relevant and material to the subsequent representation.
  • Significantly harmful: if the information is prejudicial in fact to the former prospective client within the confines of the specific matter in which disqualification is sought.

Applying the facts of the underlying matter to the two-step analysis, the Appellative Division concluded that significantly harmful information substantially related to the current litigation was disclosed to Defendant’s attorney by Plaintiff. The information about the parties’ relationship, finances, lifestyle, assets and income was at the heart of Plaintiff’s claim for palimony—the crux of the pending litigation. Indeed, it covered the first four years of the parties’ relationship.

Even more concerning is the fact that the disclosed information could be used against Plaintiff in this litigation. The Appellative Division opined that the information provided insight into Plaintiff’s motivations in the parties’ relationship and could be used against Plaintiff to challenge her palimony award and any future settlement negotiations.

The Appellate Division affirmed the dismissal without prejudice and permitted Defendant to refile. However, the Appellate Division reversed insofar as the pleadings were sealed and Defendant was barred from sharing the pleadings since the trial court made no factual findings or conclusions of law and the information was not the basis of Defendant’s underlying motion to vacate. Rather, it was based upon public records of property transfers that occurred long after the consultation.

Conclusion

I am often asked by clients whether their filings are accessible by the public. The answer is a resounding, yes as there is a presumption of public access. It is important to inform clients that, in order to rebut that presumption, it needs to be shown that disclosure will cause a clearly defined and serious injury to any person and that the person’s interest in privacy substantially outweighs the need for public access.

Take detailed notes during consultations and retain them. Ask for names of all parties involved and any prior or ongoing representation of those parties. Using conflict check systems, and not simply memory and handwritten notes is a must – – – even if it delays being officially retained for a few days. Future litigation in family law matters is not uncommon (see: any post-judgment docket in New Jersey). The family bar in New Jersey is vast, but small enough where overlaps are possible – – – especially within counties. The possibility that a conflict may exist should be vetted extensively at the outset prior to the prospective client disclosing detailed information or the attorney providing any legal advice. Time is precious for clients and attorneys; the last thing anyone needs is a motion to dismiss a pleading only to start over again.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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