A lawyer who consults with a prospective client about a divorce generally may not later represent the prospective client’s spouse in the divorce. (See, e.g., Model Rule 1.18; cf. Model Rule 1.9 cmt. 3: “a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce.”) But may the lawyer represent the prospective client’s brother’s spouse in her divorce? No, according to New York’s appellate division in a somewhat confusing decision this week.
Two brothers apparently wanted to divorce their spouses around the same time frame. They also shared similar tastes in lawyers. The first brother, who would later become the plaintiff in his divorce case and the movant for disqualification, had made an appointment to consult with the lawyer about his then-contemplated divorce, but according to the lawyer, the plaintiff cancelled the appointment. The plaintiff thus never became a prospective client in the technical sense. (The lawyer also alleged that the “plaintiff had consulted with various top matrimonial attorneys in the area to prevent [the defendant] from hiring an attorney.”) It was undisputed, however, that the plaintiff’s brother had become a prospective client, when he consulted the lawyer about his own divorce and in that consultation shared “detailed confidential information concerning various businesses the plaintiff and his brother own and in which they share common interests.” On that factual basis alone, the trial court refused to disqualify the lawyer, but the appellate division (over one dissent) reversed and granted the motion to disqualify. To reach this seemingly attenuated result, the court relied on two, frequently applied canons in disqualification law: (1) that any doubts should be resolved in favor of disqualification and (2) that the appearance of impropriety should be avoided. When viewed through these lenses, the overlapping financial information learned from the plaintiff’s brother ultimately tipped the scales toward disqualification.