Most people don’t know much about divorce before entering the process. They hear from friends and relatives’ bits and pieces, almost always scandalous and dispiriting. Then the rest they pick up from television and movies such as the ability to disqualify a divorce lawyer from talking to your spouse by merely consulting with the divorce lawyer first. In theory, the mere consultation with a divorce attorney creates a conflict of interest which disqualifies the lawyer from representing the consultor’s spouse.
In the famed HBO television series “The Sopranos” the mafia boss’s wife, Carmela Soprano finds that the mafia boss, Tony Soprano has already consulted with every divorce lawyer in town. Carmela is distraught to find that all of these lawyers were ethically obligated to refuse a consultation with Carmela because of their previous consultations with Tony.
Can Tony’s disqualifying consultations really happen? Why didn’t Carmella just go to the next town? Why didn’t she just drive 45 minutes into New York city with its thousands of divorce lawyers?
My questions are rhetorical because obviously this disqualification strategy is pointless in a world flush with family law attorneys.
The actual rules for disqualifying attorneys in Illinois (family law or otherwise) are governed by the Illinois Rules of Professional Conduct 1.7 and 1.9.
Rule 1.7 states that:
“(a) A lawyer shall not represent a client if the representation of that client will be
directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after disclosure.
(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after disclosure.
(c) When representation of multiple clients in a single matter is undertaken, the disclosure shall include explanation of the implications of the common representation and the advantages and risks involved.”
Rule 1.9 states that:
“(a) A lawyer who has formerly represented a client in a matter shall not thereafter:
(1) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client consents after disclosure; or
(2) use information relating to the representation to the disadvantage of the former client, unless:
(A) such use is permitted by Rule 1.6; or
(B) the information has become generally known.”
The crux of these rules is that previous representation or consultation may give have allowed the lawyer to obtain confidential knowledge of that previous client who is now an opposing party. The use or possible use of that confidential knowledge is anywhere from simply unfair to eroding the concept of attorney-client privilege which undergirds our entire justice system.
Rules such as these usually get boiled down by the courts after they bump up against real world situations. Schwartz v. Cortelloni, 177 m. 2d 166,226 m. Dec. 416, 685 N.E.2d 871 (1997), found that an Illinois court must take these steps to see if a lawyer should truly be disqualified:
“(1) The trial court should first make a factual reconstruction of the scope of the former representation, (2) it must determine if it is reasonable to infer that confidential information allegedly given would have been given to the lawyer representing a client in those matters and (3) whether the information is relevant to the issues raised in the litigation pending against the former client.“
Why can’t the Illinois courts just simply say “If it looks improper, then it probably is improper. Find another lawyer.”?
Schwartz v. Cortelloni answers this question as well:
“Attorney disqualification is a drastic measure because it destroys the attorney-client relationship by prohibiting a party from representation by counsel of his or her choosing. Thus, caution must be exercised to guard against motions to disqualify being used as tools for harassment.”
Even in the massive city of Chicago and the enormous jurisdiction of Cook County, I have had husbands consult with me before wives and wives consult with me before husbands. I simply don’t continue the consultation after confirming that I’ve interviewed the spouse prior to the consultation.
The appearance of impropriety simply isn’t worth it for myself or the client. I don’t need the business and I honestly question both the zealous advocacy and the dispassionate analysis of any family law lawyer who would.
Would you pay a lawyer to argue that he should have the right to represent you or not represent your spouse? Would you pay your spouse’s lawyer to argue against him? Does this seem like a reasonable allocation of legal expenses?
In sum, disqualifying divorce lawyers doesn’t work in the legal sense but probably does work in the practical sense.
As for your spouse’s lawyer being subject to disqualification, maybe it’s best to save that option as leverage for later in the case.
To learn more about what disqualifying a divorce lawyer in Illinois means, contact my family law office in Chicago to speak with an experienced family law attorney.