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Shopping Spree!
Harking back to one's first years of practice, and even as far removed as law school, we were taught about the concept of “forum shopping.” That is, of course, “the practice of choosing the most favorable jurisdiction or court in which a claim might be heard.” Black's Law Dictionary 681 (8th ed. 2004). The term has a pejorative connotation wherein the litigant's choice of forum is designed to gain improper advantage in a disingenuous fashion.
In matrimonial law, however, the shopping spree is often not just limited to the forum. It is not uncommon for litigants to consult with a series of attorneys in order to narrow the pool of available counsel able to represent their spouse and “conflict out” particular lawyers. There is also an increasing instance of well-informed clients retaining particular attorneys to cause the disqualification of particular judges whom the client would like to avoid. In both instances, the integrity of the legal system demands that all appearances of impropriety be eliminated even at the risk of the client losing his or her preferred choice of counsel.
Lawyer Shopping and the Serial Consulter: The 'Malevolent'
We all know the client who, in legitimately seeking representation, has seemingly been to every matrimonial attorney in the county, if not all contiguous counties as well. The client is trying to find the “perfect match” to fit his or her personality or to combat the other side's “barracuda.” Many times, this client has already had several lawyers who never seem to satisfy him/her (or prior counsel have all made applications to withdraw) and he/she is on the hunt again. Contrast this client with the litigant who, with malice aforethought, consults with every top divorce attorney he can get an appointment with so that when his wife goes in for her consultation, counsel will not even see her. The questions arise: Does it matter what the motivation is and do the particular discovery mandates of domestic relations practice have any effect?
Under the new Rules of Professional Conduct, effective April 1, 2009 (22 NYCRR 1200, et seq.), we now have some guidance. Rule 1.18, “Duties to Prospective Clients,” addresses the issue of confidentiality when dealing with prospective clients by first defining the term as follows: “A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a 'prospective client.'” Rule 1.18(a).
The lawyer's obligation vis-a-vis confidentiality is referenced in Rule 1.18 (b): “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (Rule 1.9 is entitled “Duties to Former Clients” and relates to subsequent representation issues when the first client actually retained the attorney and now a new “adverse” client is seeking representation by the same attorney. This Rule was, in substance, previously codified in former DR 5-108. For a comparison of the old and new rules, see Simon, Comparing the New NY Rules of Professional Conduct to the NY Code of Professional Responsibility, New York Professional Responsibility Report (www.nyprr.com).)
Amidst all of the confidentiality protections that are provided to “prospective clients” under the new Rules, subdivision (e) of Rule 1.9 states:
(e) A person who:
(1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or
(2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client with the meaning of paragraph (a).
It appears, then, that the malevolent serial consulter, who intends to bring about the lawyer's disqualification from representing his or her spouse, is not covered by the “prospective client” rule. Since “prospective clients” have been provided their own new rule and are delineated from “clients” as set forth in the other new rules, what then to do about confidentiality and disqualification? Privilege and confidentiality has always applied even without retention as long as the communication is made by the client with a view to employing the lawyer and in reference to the matter to which the communication relates. Prince, Richardson on Evidence ' 5-203.
Under Rule 1.18, the serial consulter has no confidentiality protection, and it would seem also an inability to disqualify counsel from representing the adverse spouse. Of course, what attorney wants to dive into the ensuing imbroglio when the serial consulter most certainly will file a grievance against the attorney now representing the spouse, claiming no intent to disqualify counsel? The attorney now stands accused of giving up the serial consulter's confidential information; the motion to disqualify counsel also ensues and the malpractice carrier has to be placed on notice of the claim to come. Does the new Rule stop this prevalent practice in reality, perhaps as a deterrent? That presumes the offender knows the new Rule, but if he or she is that Machiavellian, does the plan not proceed anyway?
The 'Benign' Serial Consulter
The non-malevolent or “benign” serial consulter, is protected ' again assuming one sorts out the intent issue and finds that he or she was simply trying to find the right attorney/client fit. Confidentiality applies as set forth in Rule 1.18(c): “A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).”
Rule 1.18(d) then goes on to describe the conditions under which subsequent representation of the adverse spouse may be nonetheless permissible:
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;
(ii) the firm implements effective screening procedures to prevent the flow of information about the matter between the disqualified lawyer and the others in the firm;
(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and
(iv) written notice is promptly given to the prospective client; and
(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.
Lee Rosenberg, a member of this newsletter's Board of Editors, is a partner with the law firm of Saltzman Chetkof & Rosenberg LLP in Garden City. He is a fellow of the American Academy of Matrimonial Lawyers.
Harking back to one's first years of practice, and even as far removed as law school, we were taught about the concept of “forum shopping.” That is, of course, “the practice of choosing the most favorable jurisdiction or court in which a claim might be heard.” Black's Law Dictionary 681 (8th ed. 2004). The term has a pejorative connotation wherein the litigant's choice of forum is designed to gain improper advantage in a disingenuous fashion.
In matrimonial law, however, the shopping spree is often not just limited to the forum. It is not uncommon for litigants to consult with a series of attorneys in order to narrow the pool of available counsel able to represent their spouse and “conflict out” particular lawyers. There is also an increasing instance of well-informed clients retaining particular attorneys to cause the disqualification of particular judges whom the client would like to avoid. In both instances, the integrity of the legal system demands that all appearances of impropriety be eliminated even at the risk of the client losing his or her preferred choice of counsel.
Lawyer Shopping and the Serial Consulter: The 'Malevolent'
We all know the client who, in legitimately seeking representation, has seemingly been to every matrimonial attorney in the county, if not all contiguous counties as well. The client is trying to find the “perfect match” to fit his or her personality or to combat the other side's “barracuda.” Many times, this client has already had several lawyers who never seem to satisfy him/her (or prior counsel have all made applications to withdraw) and he/she is on the hunt again. Contrast this client with the litigant who, with malice aforethought, consults with every top divorce attorney he can get an appointment with so that when his wife goes in for her consultation, counsel will not even see her. The questions arise: Does it matter what the motivation is and do the particular discovery mandates of domestic relations practice have any effect?
Under the new Rules of Professional Conduct, effective April 1, 2009 (
The lawyer's obligation vis-a-vis confidentiality is referenced in Rule 1.18 (b): “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (Rule 1.9 is entitled “Duties to Former Clients” and relates to subsequent representation issues when the first client actually retained the attorney and now a new “adverse” client is seeking representation by the same attorney. This Rule was, in substance, previously codified in former DR 5-108. For a comparison of the old and new rules, see Simon, Comparing the New NY Rules of Professional Conduct to the NY Code of Professional Responsibility,
Amidst all of the confidentiality protections that are provided to “prospective clients” under the new Rules, subdivision (e) of Rule 1.9 states:
(e) A person who:
(1) communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship; or
(2) communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client with the meaning of paragraph (a).
It appears, then, that the malevolent serial consulter, who intends to bring about the lawyer's disqualification from representing his or her spouse, is not covered by the “prospective client” rule. Since “prospective clients” have been provided their own new rule and are delineated from “clients” as set forth in the other new rules, what then to do about confidentiality and disqualification? Privilege and confidentiality has always applied even without retention as long as the communication is made by the client with a view to employing the lawyer and in reference to the matter to which the communication relates. Prince, Richardson on Evidence ' 5-203.
Under Rule 1.18, the serial consulter has no confidentiality protection, and it would seem also an inability to disqualify counsel from representing the adverse spouse. Of course, what attorney wants to dive into the ensuing imbroglio when the serial consulter most certainly will file a grievance against the attorney now representing the spouse, claiming no intent to disqualify counsel? The attorney now stands accused of giving up the serial consulter's confidential information; the motion to disqualify counsel also ensues and the malpractice carrier has to be placed on notice of the claim to come. Does the new Rule stop this prevalent practice in reality, perhaps as a deterrent? That presumes the offender knows the new Rule, but if he or she is that Machiavellian, does the plan not proceed anyway?
The 'Benign' Serial Consulter
The non-malevolent or “benign” serial consulter, is protected ' again assuming one sorts out the intent issue and finds that he or she was simply trying to find the right attorney/client fit. Confidentiality applies as set forth in Rule 1.18(c): “A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).”
Rule 1.18(d) then goes on to describe the conditions under which subsequent representation of the adverse spouse may be nonetheless permissible:
(d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the firm acts promptly and reasonably to notify, as appropriate, lawyers and nonlawyer personnel within the firm that the personally disqualified lawyer is prohibited from participating in the representation of the current client;
(ii) the firm implements effective screening procedures to prevent the flow of information about the matter between the disqualified lawyer and the others in the firm;
(iii) the disqualified lawyer is apportioned no part of the fee therefrom; and
(iv) written notice is promptly given to the prospective client; and
(3) a reasonable lawyer would conclude that the law firm will be able to provide competent and diligent representation in the matter.
Lee Rosenberg, a member of this newsletter's Board of Editors, is a partner with the law firm of
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