Family Law

Editor:
John W. Dennis, Jr., Esquire

Attorney previously consulted by a prospective client in divorce case is not barred from subsequent representation of ex-spouse of prospective client in modification action absent proof that confidential information was previously provided that could be significantly harmful in current case. State ex rel., et al. v. Dueker, No. 96570 (Mo. App. E.D., August 9, 2011), Crane, J.

This is an action for a writ of prohibition to prevent the trial court from barring the Schechter Law Firm from representing the ex-wife in an action brought by the ex-husband for modification of a maintenance judgment granted in the ex-spouses’ divorce. It seems that prior to the finalization of the divorce action the ex-husband had consulted with a member of the Schechter Law Firm. He paid for the consultation but did not hire the firm. Four years later the ex-husband sued for a modification of the original maintenance judgment. Another member of the Schechter Law Firm was hired to represent the ex-wife, and the ex-husband sought an order requiring the firm to withdraw as her attorneys. The trial court agreed with the ex-husband and this proceeding in prohibition challenging that decision ensued. A temporary writ issued.

Held: Preliminary writ made permanent.  The firm is allowed to represent ex-wife.
The ex-husband met with a member of the firm for about one hour during which he discussed personal and confidential information about his business and personal life. He paid the firm for the consultation, but never hired the firm.

Editor’s note:
The ex-husband appears from the court’s opinion to be the prototypical “prospective client.”

The court’s opinion notes the difference between former clients and former prospective clients, stating “An attorney-client relationship exists when a prospective client seeks and receives legal advice and assistance from an attorney who intends to undertake to provide legal advice and assistance to the prospective client in a particular matter. Donahue v. Shugart, Thompson & Kilroy, PC,  900 S.W.2d 624, 626 (Mo. banc 1995) et al.” “Mere payment of a fee without proof that the payor received legal advice or assistance from the attorney or that the attorney intended to provide the client with legal advice or assistance, does not show an attorney-client relationship. Mid-Continent v. Powell, 196 S.W.3d 595, 598 (Mo. App. 2006) (citing Leidy v. Taliaferro, 260 S.W.2d 504, 507 (Mo. 1953).”

The opinion states that neither the ex-husband nor the original attorney consulted provided evidence that any legal advice was sought or provided in that one consultation four years hence. “Thus, ‘[i]n the context of prospective clients, a conflict occurs not because of the fact of consultation, but because of the passing of confidential information from the prospective client to the lawyer.’ Pelley v. State, 901 N.W.2d 494, 507 (Ind. 2009) (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS Sec. 15 (2000); see also Charles W. Wolfrom, Ethics 2000 and Conflicts of Interest: The More Things Change…., 70 Tenn. L. Rev. 27, 60 (2002).” “Accordingly, to disqualify a lawyer on the basis of a consultation with a former prospective client, not only must the matter of the consultation and the adverse matter be the ‘same’ or ‘substantially related,’ but also the information received during the consultation must be ‘significantly harmful if used in the matter.’ Rule 4-1.18(c).” The burden is upon the party seeking disqualification.

Order of child protection proper against unmarried cohabitant of non-custodial parent because the child stays with each parent according to an on-going schedule.Cima v. Fansler, No.72702 (Mo. App. W.D., July 26, 2011), Hardwick, J.

An order of child protection was granted against Fansler who challenged, among other things, the conclusion that the child and she shared a household. Fansler is residing with the child’s father, who is the non-custodial parent of the child and receives regular parenting time pursuant to an existing judgment for dissolution of marriage.

Held: Affirmed.
The court’s opinion notes the dearth of prior case law assessing a person’s status as a resident of the child’s household. Fansler argued that the child resides with his mother the majority of the time.

Countryside Cas. Co. v. McCormick, 722 S.W.2d 655 (Mo. App. 1987), is helpful in the context of this case. In Countryside, the court held that a child with separated parents could have two separate residences. Id. at 659.” The standard for determining if the child has two separate residents under these circumstances involves whether there are on-going periods of residence with both parents and whether the non-resident parent provides substantial support of the child in the home where the child primarily resides. “Evidence of either of these factors may be sufficient to warrant the determination that a child continues to be a resident of the insured parent’s household. Id. at 657 (quoting Widiss, Uninsured and Underinsured Motorist Insurance, Second Ed. Vol. 1, Sec. 4. 13).” Consequently, Fansler met the statutory requirement as a member of the child’s household.

Trial court erroneously concluded that disabled ex-spouse’s social security disability benefits would continue in combination with imputed income that the court concluded she was capable of earning because the latter would cancel the former, if actually earned. Lindhorst v. Lindhorst, No. 90996 (Mo. banc, June 14, 2011), Teitelman, J.

The parties were divorced in 1998 at which time the Wife received maintenance of $1,000 per month. She earned $1,387 per month as a registered nurse at that time. In 2003, she was determined to be disabled by the Social Security Administration and began receiving disability benefits. In 2008, the husband sued for a termination of maintenance and proved to the trial court’s satisfaction that the wife was capable of earning $1,600 per month. “The trial court recognized the imputed income from part-time employment as ‘income in addition to her Social Security disability benefit.’ “It reduced the maintenance amount. The wife appealed.

Held: Reversed.
“Federal Social Security disability benefits are intended to ‘replace income lost due to the recipient’s inability to work.’ Weaks v. Weaks, 821 S.W.2d 503, 506 (Mo. banc 1991). The applicable regulations provide that disability benefits will stop if the recipient engages in ‘substantial gainful activity.’ 20 C.F.R. 404.401a.” The amount of work the trial court concluded the Wife was capable of doing would be “substantial gainful activity” and would negate her Social Security disability benefits. “Consequently, the trial court erred in considering both the imputed income and (Wife’s) Social Security disability benefit as a basis for reducing (Husband’s) monthly maintenance obligation.”