Q: Six months ago, I was referred to a sole practitioner, divorce lawyer in Boca Raton. During the course of a week, I talked to her over the phone three times about my case. We discussed the issues in detail. She did not bill me for her time.
We discussed the marital facts and the personal problems that my husband and I had been having, and my suspicions of his having an ongoing extramarital affair. We did not get into the fine details of the financial aspects, but did discuss our incomes, and his business history, and an inheritance that I would soon receive.
We discussed custody issues, including the possibility of keeping the children in Catholic education, through high school, and making sure that I could get my husband to pay for it, and for tutoring one of the children.
As the result of those discussions, I decided that I really liked the attorney, but that I was not yet ready to go ahead with the divorce. While the lawyer did not charge for her time, she told me her hourly rate and retainer requirements, and I told her that I would be calling her back, when I made up my mind.
I was a bit shocked yesterday when I was served with my husband’s divorce papers signed by the same lawyer that I had talked to six month ago. My husband denies that he knew that I had talked to the lawyer, but I believe that it was too coincidental. I may have left her card in my purse. He is not above looking through my things.
I called the lawyer to complain, but her secretary said she could not talk to me, because she represented my husband, but I was told that she had no recollection of our conversation, and no notes. This does not seem fair, can she represent my husband, or is she disqualified?
A. Under the Florida Bar’s recently passed rule 4-1.18, entitled Duties to Prospective Client, your husband may have to choose new counsel.
A “Prospective Client” is a person who discusses the possibility of forming an attorney-client relationship with respect to a prospective matter. Even when no client-lawyer relationship is finalized, and no fees are paid, a lawyer who has discussions with a prospective client shall not use or reveal information learned in that consultation, unless the two parties agree, in writing.
Under limited circumstances, another attorney at the initial lawyer’s firm could represent your husband, but here there is no other attorney available. It is quite possible that the attorney had no recollection of your calls, and made no notes, but that would not make a difference. She should have entered your name and that of her husband into her conflict log, a list of clients and prospective clients and their mates, and then run a crosscheck when you called, and when your husband called.
There have been a few reported instances when a wealthy person planning a divorce tried to intentionally conflict out many of the well known divorce lawyers in the community, by investing in paid conferences with several of them.
If this can be proven, that person may have waived the privilege usually given those conversations by his or her fraudulent intent. From your question it does not appear that you had such intent.
If the lawyer you describe will not withdraw from the matter, after receiving a letter from you or from the lawyer you decide to hire, a motion can be made to have the judge in your case disqualify the attorney. A grievance may be filed against the offending lawyer.
For additional information, call The Florida Bar Ethics’ Hotline at The Florida Bar headquarters in Tallahassee.
Michael H. Gora has been certified by the Board of Specialization and Education of The Florida Bar as a specialist in family and matrimonial law, and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton, and can be reached at (561) 477-7800 or mhgora@sbwlawfirm.com.