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Vol. 72, No. 12, December
1999 |
Letters
The Wisconsin Lawyer publishes as many letters in each
issue as space permits. Please limit letters to 500 words; letters
may be edited for length and clarity. Letters should address
the issues, and not be a personal attack on others. Letters endorsing
political candidates cannot be accepted. Please mail letters
to "Letters to the Editor," Wisconsin Lawyer,
P.O. Box 7158, Madison, WI 53707-7158, fax them to (608) 257-5502,
or email them.
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
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