Most people don’t know much about divorce before entering the divorce 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 consulting party’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 where there are 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.”
Furthermore, parties usually attempt mediation with a lawyer before retaining lawyers to officially represent them in the divorce. Those mediator/lawyers are also disqualified from representing either party.
“[A] lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent.” Ill. Sup. Ct. R. 1.12(a)
The crux of these rules is that previous representation or consultation may have allowed the lawyer to obtain confidential knowledge regarding the previous client who is now an opposing party. The use or possible use of that confidential knowledge is plainly unfair and erodes the concept of attorney-client privilege which undergirds our entire justice system.
Rules like this get boiled down by the courts after they bump up against real world situations. The Illinois Supreme Court, 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.” Schwartz v. Cortelloni, 177 m. 2d 166,226 m. Dec. 416, 685 N.E.2d 871 (1997)
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.”
“Courts place the heavy burden on the movant to prove the grounds for the disqualification in order to ensure that the motion is not being brought as a tactical weapon to gain undue advantage in the litigation.” Macknin v. Macknin, 404 Ill. App. 3d 520, 530 (Ill. App. Ct. 2010)
“There must be a substantial basis for believing that an actual conflict of interest exists in order to disqualify the attorney from her representation of multiple clients, not merely a potential or speculated one.” Chandra v. Chandra, 2016 IL App (1st) 143858, ¶ 34
Even in the massive city of Chicago and the enormous jurisdiction of Cook County, I have had husbands consult with me before their wives consulted with me and vice versa. I simply do not continue the consultation after confirming that I’ve interviewed the spouse prior to the consultation.
The appearance of impropriety simply is not worth it for myself, the lawyer, or the client. I do not 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 does not 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 is best to save disqualification as an option for leverage later in the case (which, as described above is discouraged).
Prenuptial Agreements And Disqualifying A Divorce Attorney In Illinois
A common scenario is that a divorce attorney is hired to prepare a prenuptial agreement for a soon-to-be married person and then, years later, that same divorce attorney is hired to represent that person in the divorce that would be governed by that prenuptial agreement.
If the prenuptial agreement is challenged for duress that the divorce lawyer witnessed or vagueness which requires parole evidence from the divorce lawyer, then the divorce lawyer may be disqualified from representing the client as they are likely to be a witness.
“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness” Ill. Sup. Ct. R. 3.7
Until those issues are brought up via a motion for declaratory judgment to invalidate the prenuptial agreement, the divorce lawyer’s representation should remain steadfast.
More likely, the prenuptial agreement itself will include a clause wherein the parties agree that representation in drafting, reviewing and approving the prenuptial agreement shall not preclude either attorney from representing their respective client in an eventual divorce.
If A Lawyer Could Be A Necessary Witness They Must Be Disqualified
Divorce lawyers often represent their friends and their family. A divorce lawyer may have personal knowledge of the facts of the case. If a divorce lawyer is the ONLY person who can testify to a fact in a divorce case, they must withdraw so can provide testimony without breaking the sacrosanct attorney client confidentiality.
Again, “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless:
“[T]he attorney-witness may not be a fully objective witness, causing harm to the client’s cause, or the trier of fact may grant undue weight to the attorney’s testimony, unfairly disadvantaging the opposing party.” People v. Rivera, 986 NE 2d 634 – Ill: Supreme Court 2013
You only get one chance to disqualify a lawyer at the trial level. You cannot bring that issue up on appeal if you did not try to disqualify the lawyer earlier. “It is well settled that issues not raised in the trial court are deemed waived and may not be raised
for the first time on appeal.” Haudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996).
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.
