Risk Update

Lawyer Conflicts Appeals — Dental DQ Clash, Divorce Consideration (Post-Prenup Conflict Cleared)

Posted Dan Bressler

“No Conflict Found Where Attorney Challenged Prenup She Had Reviewed For Client” —

  • “An attorney who had counselled a client in connection with a prenuptial agreement that barred post-divorce spousal support later represented that same client when she later claimed she had misunderstood and been pressured to sign the agreement.”
  • “By a 2-1 vote, an Oregon Trial Panel concluded that the change in postion did not amount to a sanctionable conflict of interest.”
  • Decision:
    • “Voytyuk came to Oregon on a “fiancée visa,” planning to marry Lamb. She moved in with him and a wedding date was set in June of 2007. A few days before the wedding, Lamb told Voytyuk that she had to sign a prenuptial agreement (the “Agreement”) or else he would not marry her and she would be forced to return to Russia. Lamb presented her with the Agreement that had been drafted by his lawyer. He told Voytyuk that she needed to have the Agreement reviewed by a lawyer. Lamb randomly selected Respondent to advise Voytyuk, apparently picking Respondent’s name from the phone book. Lamb and Respondent had no prior relationship.”
    • “Respondent filed an opposition to the motion on October 13, 2017. The response stated that, “Petitioner did not sign the prenuptial agreement voluntarily … Petitioner was under duress at the time she signed the agreement, and did not understand English well…” Ex. 17. Voytyuk also signed a declaration in which she stated, ‘I showed the prenuptial agreement to Ms. Smith-Koop, but I really did not understand it. I did not speak much English at that time because I had very little practice, and I did not understand listening to it. I signed the prenuptial agreement, but not voluntarily.’ Ex. 17.”
  • “The judge raised the conflicts issue and threatened a bar complaint if the attorney did not withdraw… The attorney withdrew… The trial panel found no conflict.”
    • “The Bar’s argument suffers from the same flaw that caused the judge to believe a conflict existed. The Bar states that “[Respondent] certified that Voytyuk had understood the agreement.” Respondent did not certify that fact. Respondent certified that Voytyuk acknowledged she understood the agreement. There is no dispute that Voytyuk expressly told Respondent that she understood the agreement. Voytyuk later revealed that she lied to Respondent when she said this, but the Bar produced no evidence that Respondent should have been aware of this. Absent evidence to the contrary, an attorney is entitled to rely on a client’s assurances that she understands what the attorney is explaining.”

“NJ Court Must Rethink Archer DQ In Dental Office Biz Dispute” —

  • “A New Jersey state appeals panel on Thursday ordered a lower court to rethink its disqualification of law firm Archer from representing a dental practice in a business dispute, ruling that the motion judge didn’t thoroughly probe the matter as required by state Supreme Court precedent.”
  • “A three-judge Appellate Division panel reasoned that a Camden County Superior Court judge merely accepted the argument by defendant RRI Gibbsboro LLC and its principals that attorney Kerri E. Chewning can’t represent plaintiff Dental Health Associates South Jersey and an affiliate. RRI reasoned that disqualification was in order because Chewning’s Archer colleague, Anthony D. Dougherty, represented its principals in separate litigation in New York.”
  • “The Camden County judge must now conduct the “fact-sensitive analysis” set forth under the state high court’s 2010 decision in City of Atlantic City v. Trupos . Trupos requires courts considering disqualification bids to probe if the lawyer received confidential information from the former client that can be used against that client in the firm’s subsequent representation of that client’s adversary, or if facts relevant to the prior matter are relevant and material to the subsequent matter.”
  • “However, the motion judge accepted defendants’ contention that the New York litigation and the New Jersey matter were substantially related.”
  • “In the disqualification motion, Scott Singer argued that Dougherty knew about the trial strategy and defenses in the New York matter and had obtained confidential information about the Singers, the appeals decision said. Chewning and Dougherty each opposed the motion, certifying that they “worked in different Archer offices and had never met, let alone spoken with each other about defendants or their cases,” the appeals decision said. Archer’s general counsel also certified that Dougherty had no access to the file in the present matter, according to the appeals decision.”