ConflictinVA
New Member
Wife's lawyer has conflict of interest: How best to use to my advantage?
Background:
My wife and me prepared a Property Settlement Agreement, with the assistance of a lawyer. At that time, we were not separating or aiming for a divorce. I turned over all information as wife and lawyer asked for them. 18 months later, wife sues for divorce and incorporation of PSA into divorce decree.
This is followed by a second suit, within two weeks, enforcement of PSA terms. Judge grants it.
Problem:
The lawyer who drew up the PSA is representing my wife.
This is a clear issue of 'Conflict of Interest'.
Proving it:
In the 'Rules of Professional Conduct' as published by Virginia State Bar, rule 1.7, 1.8 and 1.9 deal with conflict of interest. As luck would have it, there a FAQ titled 'Answering your Questions about Legal Ethics', which contains the following:
BEGIN QUOTE
18. Representation of Former Client in Divorce
Can an attorney represent a spouse in a divorce where the attorney previously represented the couple jointly in some other legal matter?
Satisfied clients usually return to former counsel when new matters arise. This is generally a good thing. However, potential conflicts of interest must be considered where the prior representation was part of joint representation of spouses. Frequently, an attorney will have done estate planning, bankruptcy or real estate work for a couple only to be contacted by one of the spouses when the marriage is dissolving. Each of these new representations must be analyzed regarding two rules: 1.6 governing client confidentiality and 1.9 regarding former clients. Rule 1.9(a) prohibits an attorney from representing a party adverse to a former client in a matter substantially related to the prior representation. This prohibition is often not the hindrance to accepting these new representations, as while the divorce certainly is adverse to the former client, it is not usually "substantially related" to the prior matter. Nevertheless, Rule 1.9(b), together with Rule 1.6, may be the source of a conflict in many of these instances. Rule 1.9(b) prohibits a lawyer from using confidential information obtained during a prior representation to the disadvantage of the former client. Attorneys must consider whether any of the information obtained during the first matter would be pertinent in the divorce. If such information was received, then, under Rules 1.6 and 1.9(b), the attorney may only represent one spouse in the divorce if the other spouse consents to the use of that information against him or her. See, LEOs 569, 677, 707, 774, 792, 1032 and 1181, reaching the same conclusions under the former Code of Professional Responsibility.
END QUOTE
To make my point the VSB has kindly provided an opinion in LEO 667.
BEGIN QUOTE
LEO 677: Conflict of Interest—Sharing Office Space While Representing Opposite Sides in a Divorce Case.
April 2, 1985
Attorney A previously represented both husband and wife in drafting a property settlement agreement which the husband and wife executed. Attorney A rendered legal advice to both husband and wife regarding the property settlement agreement. It would now be improper for attorney A to represent the wife in litigation for divorce in which the validity of the property settlement is an issue.
Since attorney A and attorney B share office space and secretarial help, it would also be improper for attorney B to represent the husband in the same divorce matter.
END QUOTE
Question:
How can I use this information to overturn the second court order, the enforcement of PSA terms? If not completely overturned, can I at least get it suspended or even better reversed. Don't want to pay out while wife has to get new lawyer.
A big thanks to everyone who participates!
httpwwwvsb.org&profguides&FAQ_leos&LegalEthicsFAQs&dot&html
Background:
My wife and me prepared a Property Settlement Agreement, with the assistance of a lawyer. At that time, we were not separating or aiming for a divorce. I turned over all information as wife and lawyer asked for them. 18 months later, wife sues for divorce and incorporation of PSA into divorce decree.
This is followed by a second suit, within two weeks, enforcement of PSA terms. Judge grants it.
Problem:
The lawyer who drew up the PSA is representing my wife.
This is a clear issue of 'Conflict of Interest'.
Proving it:
In the 'Rules of Professional Conduct' as published by Virginia State Bar, rule 1.7, 1.8 and 1.9 deal with conflict of interest. As luck would have it, there a FAQ titled 'Answering your Questions about Legal Ethics', which contains the following:
BEGIN QUOTE
18. Representation of Former Client in Divorce
Can an attorney represent a spouse in a divorce where the attorney previously represented the couple jointly in some other legal matter?
Satisfied clients usually return to former counsel when new matters arise. This is generally a good thing. However, potential conflicts of interest must be considered where the prior representation was part of joint representation of spouses. Frequently, an attorney will have done estate planning, bankruptcy or real estate work for a couple only to be contacted by one of the spouses when the marriage is dissolving. Each of these new representations must be analyzed regarding two rules: 1.6 governing client confidentiality and 1.9 regarding former clients. Rule 1.9(a) prohibits an attorney from representing a party adverse to a former client in a matter substantially related to the prior representation. This prohibition is often not the hindrance to accepting these new representations, as while the divorce certainly is adverse to the former client, it is not usually "substantially related" to the prior matter. Nevertheless, Rule 1.9(b), together with Rule 1.6, may be the source of a conflict in many of these instances. Rule 1.9(b) prohibits a lawyer from using confidential information obtained during a prior representation to the disadvantage of the former client. Attorneys must consider whether any of the information obtained during the first matter would be pertinent in the divorce. If such information was received, then, under Rules 1.6 and 1.9(b), the attorney may only represent one spouse in the divorce if the other spouse consents to the use of that information against him or her. See, LEOs 569, 677, 707, 774, 792, 1032 and 1181, reaching the same conclusions under the former Code of Professional Responsibility.
END QUOTE
To make my point the VSB has kindly provided an opinion in LEO 667.
BEGIN QUOTE
LEO 677: Conflict of Interest—Sharing Office Space While Representing Opposite Sides in a Divorce Case.
April 2, 1985
Attorney A previously represented both husband and wife in drafting a property settlement agreement which the husband and wife executed. Attorney A rendered legal advice to both husband and wife regarding the property settlement agreement. It would now be improper for attorney A to represent the wife in litigation for divorce in which the validity of the property settlement is an issue.
Since attorney A and attorney B share office space and secretarial help, it would also be improper for attorney B to represent the husband in the same divorce matter.
END QUOTE
Question:
How can I use this information to overturn the second court order, the enforcement of PSA terms? If not completely overturned, can I at least get it suspended or even better reversed. Don't want to pay out while wife has to get new lawyer.
A big thanks to everyone who participates!
httpwwwvsb.org&profguides&FAQ_leos&LegalEthicsFAQs&dot&html
