Litigation

Reimbursement for Use of Community Assets

Where a loan is taken during a marriage to build a marital residence on the separate property of one spouse, the loan may be found to be a marital debt, and the spouse who does not continue to reside in the residence after the marriage is entitled to reimbursement of one-half the net value of the asset at the time of the divorce rather than reimbursement for the amount of principal paid toward the loan. McGee v. McGee, 2004 CA 0288, Court of Appeal of Louisiana, First Circuit, March 24, 2005.

The parties were married in 1976 and divorced in 2002. During the marriage, the parties secured a loan to build a residence on a tract of land obtained by the former husband prior to the parties' marriage. The loan was secured by the property on which the house was built. After the divorce, the former husband petitioned for the judicial partition of the marital estate. The trial court declared, inter alia, that the land and the residence — and the debt — were the separate property of the former husband and awarded the former wife one-half of all of the community funds paid toward the principal of the loan. The former husband appealed, and the appellate court affirmed in part and reversed in part. It held that the loan was not the husband's debt, but a marital debt, because it was secured by both parties to build a residence in which the parties resided during their marriage. Thus, it held that, as a community obligation, the wife owed the husband one-half of the balance of the loan at the time of the partition. However, it also ruled that the husband must reimburse the wife for the community funds used to build the house on his separate property.

Disqualification of Attorney

A former associate attorney of a law firm may not be disqualified from representing a client in a fee dispute between the client and the associate's former firm. King v. Fox, 97 Civ. 4134, United States District Court for the Southern District of New York, March 31, 2005.

King hired Curtis to represent him in a legal malpractice action against his former attorney, Fox. Howard was an associate at Curtis' law firm, but left Curtis' employ after a salary dispute that was resolved in Curtis' favor in small claims court. Thereafter, King objected to Curtis' billing practices and King hired Howard, who had commenced employment as an associate with a different law firm, to represent him in his billing dispute with Curtis. Curtis moved to have Howard disqualified as King's attorney in the fee dispute, arguing that: 1) Howard was in a position to use confidential information concerning Curtis' firm in connection with the fee dispute; 2) Howard's professional judgment might be impaired by his personal issues with Curtis; and 3) Howard was likely to be called as a witness in the fee dispute. The court denied Curtis' motion and held that Howard did not need to be disqualified as King's attorney. It held that Howard's former employment at the Curtis firm did not disqualify him from representing King. The court noted that the Code of Professional Responsi-bility does not directly address the issue of a former associate seeking to represent a client in a proceeding against the associate's former employer/law firm. However, the court held that a lawyer only needs to be disqualified if the use of confidential information regarding an adverse party was obtained through prior representation or by an agent of the lawyer while the lawyer was representing the adverse party. Here, Howard never represented the Curtis firm or Curtis. The court further noted that although former partners owe a fiduciary duty to each other, Howard was merely an associate and owed no such duty to Curtis. The court further held that any personal dislike that Howard might or might not have for Curtis as a result of their employer/employee relationship did not affect Howard's ability to represent King in the fee dispute; and that any testimony Howard might have was not crucial to the fee dispute because King provided substantial documentary evidence to support his fee assertions, and there was no indication that Howard would be able to provide relevant, let alone critical, testimony.

Reimbursement for Use of Community Assets

Where a loan is taken during a marriage to build a marital residence on the separate property of one spouse, the loan may be found to be a marital debt, and the spouse who does not continue to reside in the residence after the marriage is entitled to reimbursement of one-half the net value of the asset at the time of the divorce rather than reimbursement for the amount of principal paid toward the loan. McGee v. McGee , 2004 CA 0288, Court of Appeal of Louisiana, First Circuit, March 24, 2005.

The parties were married in 1976 and divorced in 2002. During the marriage, the parties secured a loan to build a residence on a tract of land obtained by the former husband prior to the parties' marriage. The loan was secured by the property on which the house was built. After the divorce, the former husband petitioned for the judicial partition of the marital estate. The trial court declared, inter alia, that the land and the residence — and the debt — were the separate property of the former husband and awarded the former wife one-half of all of the community funds paid toward the principal of the loan. The former husband appealed, and the appellate court affirmed in part and reversed in part. It held that the loan was not the husband's debt, but a marital debt, because it was secured by both parties to build a residence in which the parties resided during their marriage. Thus, it held that, as a community obligation, the wife owed the husband one-half of the balance of the loan at the time of the partition. However, it also ruled that the husband must reimburse the wife for the community funds used to build the house on his separate property.

Disqualification of Attorney

A former associate attorney of a law firm may not be disqualified from representing a client in a fee dispute between the client and the associate's former firm. King v. Fox, 97 Civ. 4134, United States District Court for the Southern District of New York, March 31, 2005.

King hired Curtis to represent him in a legal malpractice action against his former attorney, Fox. Howard was an associate at Curtis' law firm, but left Curtis' employ after a salary dispute that was resolved in Curtis' favor in small claims court. Thereafter, King objected to Curtis' billing practices and King hired Howard, who had commenced employment as an associate with a different law firm, to represent him in his billing dispute with Curtis. Curtis moved to have Howard disqualified as King's attorney in the fee dispute, arguing that: 1) Howard was in a position to use confidential information concerning Curtis' firm in connection with the fee dispute; 2) Howard's professional judgment might be impaired by his personal issues with Curtis; and 3) Howard was likely to be called as a witness in the fee dispute. The court denied Curtis' motion and held that Howard did not need to be disqualified as King's attorney. It held that Howard's former employment at the Curtis firm did not disqualify him from representing King. The court noted that the Code of Professional Responsi-bility does not directly address the issue of a former associate seeking to represent a client in a proceeding against the associate's former employer/law firm. However, the court held that a lawyer only needs to be disqualified if the use of confidential information regarding an adverse party was obtained through prior representation or by an agent of the lawyer while the lawyer was representing the adverse party. Here, Howard never represented the Curtis firm or Curtis. The court further noted that although former partners owe a fiduciary duty to each other, Howard was merely an associate and owed no such duty to Curtis. The court further held that any personal dislike that Howard might or might not have for Curtis as a result of their employer/employee relationship did not affect Howard's ability to represent King in the fee dispute; and that any testimony Howard might have was not crucial to the fee dispute because King provided substantial documentary evidence to support his fee assertions, and there was no indication that Howard would be able to provide relevant, let alone critical, testimony.