Letters
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Representing Married, Former Clients at Divorce
As a business lawyer who does family law work, I have attended many
family law seminars over the years and have always chuckled at the
attempts by attorneys who limit their practice to the family law area to
feather their own nest by piously declaring that all others who ever
represented a party to the divorce, or their business, likely have a
disqualifying conflict of interest.
Now this "concept" has unfortunately found its
way into the Wisconsin Lawyer under the heading "Ethics,"
albeit with a disclaimer that it is really not a formal opinion. Mr.
Dietrich's September article suggests that an attorney who has
represented a client in the procurement of an asset, or one who has
learned the assets of the parties through prior representation is,
thereby, precluded from representing either in a subsequent divorce.
This is nonsense. The hallmark of Chapter
767 is that the parties are statutorily required to make full and
complete disclosures, under oath, of any and all assets in which they
have an interest. Thus, the information about the existence of the
parties' assets that the attorney may have acquired through prior
representation is not confidential or privileged, may not be hidden by
either party, and must be disclosed to the other side in any event.
The fact that an attorney represented a party or parties in obtaining
an asset does not preclude representation. The purchase of the joint
homestead is not substantially related to the issues attendant to the
disposition of the joint homestead in divorce. In fact, the only common
denominator is the address.
While I agree that you can conjure up a set of facts where an
attorney would be disqualified because of prior representation (for
example, in anticipation of divorce, the personal injury settlement is
allocated entirely to future pain and suffering), this is the exception
and not the rule. The fact of the matter is that the vast majority of
the prior representation matters identified by Mr. Dietrich would not
and should not result in a conflict of interest.
Thomas A. Merkle
Milwaukee
This letter shows the difficulty that lawyers have in assessing
compliance with the Supreme Court Rules of Professional Conduct. Each
situation must be assessed on its own merits; however, a conservative
approach is often the best alternative for the lawyer. Please note that
I have never practiced in the area of family law and was not recruited
by family law lawyers to prepare this article.
Dean R. Dietrich
Wausau
Wisconsin Lawyer