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Conflict of Interest question

  • 1.  Conflict of Interest question

    Posted 05-26-2015 11:50 AM

    Colleagues: 

    An attorney previously represented Husband and Wife in a incapacity proceeding (Chancery) in which they jointly obtained guardianship of their son. Now the parties are in divorce proceedings and an FRO was entered against Husband. The same attorney is representing Wife only in an application to remove Husband as a co-guardian. Is there a conflict issue as to the Husband? Is it waivable? Your thoughts and opinions are greatly appreciated.

     


    ------------------------------
    W. Lois Kahagi Esq.
    Metuchen NJ
    (732)662-1080
    ------------------------------



  • 2.  RE: Conflict of Interest question

    Posted 05-26-2015 12:02 PM
    There is a conflict which is waivable.


    Original Message


  • 3.  RE: Conflict of Interest question

    Posted 05-26-2015 04:04 PM
    I believe there is a conflict that would prevent the attorney from
    representing only the wife. When the attorney represented both parties in
    connection with their son, s/he likely obtained confidential information
    about the husband that could now be used against him. I don't believe it is
    in the attorney's best interests to continue representing the wife - a
    Charlie Abut response : )

    Roz


    Rosalyn A. Metzger LLC
    Attorney-Mediator
    P. O. Box 5104
    One Leigh Street
    Clinton, New Jersey 08809
    (908) 238-0099
    [email protected]
    www.mediate.com/rmetzger

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    Original Message


  • 4.  RE: Conflict of Interest question

    Posted 05-26-2015 12:30 PM
    That strikes me as a non-waivable conflict. The lawyer represented both parties in one legal proceeding involving joint guardianship; and now seeks to represent only one of them in an action to remove the other. Seems like a direct conflict.



    Hanan


    Original Message


  • 5.  RE: Conflict of Interest question

    Posted 05-26-2015 07:01 PM

    By no stretch of the imagination waivable. Good golly, Miss Molly. We've had a surprising number of would-be adversaries lately, thinking there is nothing wrong with accepting obviously conflictual assignments. Actually had to file applications. Nutty.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585
    ------------------------------


    Original Message


  • 6.  RE: Conflict of Interest question

    Posted 05-26-2015 05:19 PM








    Bill

    Why is the conflict waivable? The new representation goes directly against the previous one.

    I have not looked at the conflict rules lately. But that one would bother me.

    Hanan




    Original Message


  • 7.  RE: Conflict of Interest question

    Posted 05-26-2015 05:50 PM
    Hanan: Check RPC 1.9 (a). Regards, Bill.


    Original Message


  • 8.  RE: Conflict of Interest question

    Posted 05-26-2015 06:31 PM








    You are right. Under RPC 1.9a, informed consent trumps common sense. Of course. What was I thinking??

    As a lawyer, I would NEVER accept a matter from one former client versus another. It just looks bad.

    Hanan




    Original Message


  • 9.  RE: Conflict of Interest question

    Posted 05-26-2015 06:38 PM
    I completely agree.


    Original Message


  • 10.  RE: Conflict of Interest question

    Posted 05-26-2015 08:51 PM

    Does anyone want to be in the position of having to defend themselves down the line with informed consent? There are realities in practice here.

    ------------------------------
    Curtis Romanowski Esq.
    Senior Attorney - Proprietor
    Metuchen NJ
    (732)603-8585
    ------------------------------


    Original Message


  • 11.  RE: Conflict of Interest question

    Posted 05-26-2015 09:44 PM
    As often happens, Curt and I agree. :=)



    Hanan


    Original Message


  • 12.  RE: Conflict of Interest question

    Posted 05-27-2015 07:54 AM

    Sounds like a total conflict of interest to me. I would send a demand letter to the adversary to withdraw as counsel per RPC 1.7. 

     RPC 1.7 Conflict of Interest: General Rule

    (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

    (1) the representation of one client will be directly adverse to another client; or

    (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.

    (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

    (1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation. When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved;

    (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

    (3) the representation is not prohibited by law; and

    (4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.



    ------------------------------
    Faith Ullmann Esq.
    Owner
    Newton NJ
    (973)579-9700
    ------------------------------


    Original Message


  • 13.  RE: Conflict of Interest question

    Posted 05-27-2015 08:23 AM

    If the situation engenders so much discussion, then common sense dictates it is a situation to stay away from.

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    Mitch Steinhart, Esq.
    Bergen County Board of Social Services
    Rochelle Park, NJ
    ------------------------------


    Original Message


  • 14.  RE: Conflict of Interest question

    Posted 05-27-2015 08:24 AM








    Faith

    Bob Goodwin's cite to RPC 1.9(a) is the better argument, I think, because it is more direct and relevant to the posted set of facts than RPC 1.7 on concurrent representation.

    However, the proposed representation of one former client against another still seems like a mighty bad idea. As I wrote to Bob, it turns out that under RPC 1.9 (a), former client self determination trumps common sense.

    RPC 1.9. Duties to Former Clients

    (a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

    Hanan




    Hanan M. Isaacs, Esq.



    t 609.683.7400 f 609.921.8982

    e [email protected] w www.hananisaacs.com

    4499 Route 27, Kingston NJ










    Original Message


  • 15.  RE: Conflict of Interest question

    Posted 05-27-2015 08:40 AM

    Absolutely on point. Thanks for the cite. This happens far too often, especially as I see it, in the smaller counties, such as Sussex and Warren.  

    Thanks.

    ------------------------------
    Faith Ullmann Esq.
    Owner
    Newton NJ
    (973)579-9700
    ------------------------------


    Original Message


  • 16.  RE: Conflict of Interest question

    Posted 05-27-2015 08:57 AM
    Hanan: I'm Bill (Hunterdon) not Bob (Middlesex). I suspect Bob and I have "intercepted" referrals for one another over the years.


    Original Message


  • 17.  RE: Conflict of Interest question

    Posted 05-27-2015 08:24 AM








    Faith

    Bob Goodwin's cite to RPC 1.9(a) is the better argument, I think, because it is more direct and relevant to the posted set of facts than RPC 1.7 on concurrent representation.

    However, the proposed representation of one former client against another still seems like a mighty bad idea. As I wrote to Bob, it turns out that under RPC 1.9 (a), former client self determination trumps common sense.

    RPC 1.9. Duties to Former Clients

    (a) A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or a substantially related matter in which that client's interests are materially adverse to the interests of the former client unless the former client gives informed consent confirmed in writing.

    Hanan




    Hanan M. Isaacs, Esq.



    t 609.683.7400 f 609.921.8982

    e [email protected] w www.hananisaacs.com

    4499 Route 27, Kingston NJ










    Original Message


  • 18.  RE: Conflict of Interest question

    Posted 05-27-2015 09:12 AM








    You know, I tried so hard. I call him Bill and he always corrects me (as he should). I didn't have the full thread to refer to.

    Sorry Bob. I mean Bill.

    Hanan




    Original Message


  • 19.  RE: Conflict of Interest question

    Posted 05-27-2015 09:18 AM
    No need to apologize Hanan. Like everyone else in our business, I've been called far worse.


    Original Message