What To Do When Your Favorite Clients Divorce,

And What To Do To Anticipate The Possibility

Or Reality Of Divorce

What To Do When Your Favorite Clients Divorce, And What To Do To

Anticipate The Possibility (Or Reality) Of Divorce

William R. “Butch” Korb, Jr.Jeffrey N. Myers

Bourland, Wall & Wenzel,A Professional CorporationAttorneys and Counselors

301 Commerce Street, Suite 1500Fort Worth, Texas 76102

(817) 877-1088(817) 429-3945 (metro)

(817) 877-1636 (facsimile)

www.bwwlaw.com (website)bkorb@bwwlaw.com (Email)jmyers@bwwlaw.com (Email)

Presented toDALLAS BAR ASSOCIATION

PROBATE SECTION

January 24, 20062101 Ross Avenue

Dallas, Texas 75201

I. PRE-DIVORCE PLANNINGII. RESOLVING DISPUTESIII. HANDLING LITIGATIONIV. LAWYER AS WITNESS

Pre-Divorce Planning

QUESTION #1

Client seeks to engage Lawyer to provide asset protection planning regarding a possible divorce in order to prevent Spouse from receiving control of or an interest in certain assets. How should Lawyer

respond?

Pre-Divorce Planning

Rule 1.02 (c)

Lawyer may not assist in criminal or fraudulent act, but may discuss the legal consequences of proposed conduct.

Rule 1.02 (d)

When confidential information clearly establishes that Client is likely to commit criminal or fraudulent acts, Lawyer shall make reasonable efforts under the circumstances to dissuade Client.

Pre-Divorce Planning

QUESTION #2

Client has already engaged Lawyer to prepare transfer documents for assets and, after execution by Client, Lawyer learns of Client’s fraudulent purpose. What

should Lawyer do?

Pre-Divorce Planning

Rule 1.02 (e)

When Lawyer has confidential information clearly establishing that Client has committed a criminal or fraudulent act, of which the Lawyer’s services have been used, Lawyer shall make reasonable efforts under the circumstances to persuade Client to take corrective action.

Pre-Divorce Planning

QUESTION #3

Client responds “You have been my Lawyer for 20 years and I have paid you hundreds of thousands of dollars.

I expect you to help me!” How should Lawyer respond?

Pre-Divorce Planning

Rule 1.02 (f)

When Lawyer knows that Client expects representation not permitted by the Rules, Lawyer shall consult with Client regarding relevant limitations on Lawyer’s conduct.

Pre-Divorce Planning

QUESTION #4

Both Rule 1.02 (d) and (e) deal with Lawyer having “confidential information”.

What is does “confidential information” consist of?

Pre-Divorce Planning

Rule 1.05

Confidential information =

Privileged information, andUnprivileged Client information acquired by Lawyer in course of

representation

General Rule:

Lawyer shall not disclose or use confidential information of Client

“May” exceptions“Shall” exceptions

Pre-Divorce Planning

QUESTION #5

Lawyer is asked by Client to assist in the preparation of financial disclosures in a divorce proceeding and

Client asks that the information be knowingly misstated or withheld. What should Lawyer do?

Pre-Divorce Planning

Rule 4.01

In the course of representing Client, Lawyer shall not knowingly:

a. make a false statement of material fact or law to Third Person; orb. fail to disclose a material fact to Third Person when disclosure is necessary to

avoid making Lawyer a party to a criminal act or knowingly assisting in a fraudulent act by Client.

Rule 4.01 Comment 6

This Rule governs Lawyer’s conduct during the “course of representing Client”. If Lawyer has terminated representation prior to learning of Client’s intention to commit a criminal or fraudulent act, subpart (b) of this Rule does not apply.

Fraud = purpose to deceive

Compare Negligent Misrepresentation: a civil cause of action but not a violation of the Rules. McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 SW2d 787 (Tex. 1999)

Pre-Divorce Planning

Rule 1.05(c)

Lawyer may reveal confidential information:

(4) when Lawyer has reason to believe it is necessary to do so to comply with the Rules or other law.

(7)when Lawyer has reason to believe it is necessary to prevent Client from committing criminal or fraudulent act.

(8) to extent necessary to rectify the consequences of Client’s criminal or fraudulent act in commission of which Lawyer’s services have been used.

COMMENT 14: Disclosure adverse to Client’s interest should be no greater than Lawyer believes necessary for the purpose.

Pre-Divorce Planning

QUESTION #6

If Lawyer discloses privileged information, can Lawyer be sued by Client?

Pre-Divorce Planning

Rule 1.05, Comment 12

(1) Lawyer may have been innocently involved in past conduct by Client that was criminal or fraudulent.

(2) Since Lawyer’s services were made an instrument of Client’s crime or fraud, Lawyer has a legitimate interest in rectifying the consequences of such conduct and in avoiding charges that Lawyer’s participation was culpable.

(3) Lawyer has discretion to reveal both the unprivileged and privileged information in order to serve those interests.

(4) Per Rules of Evidence, rarely will such information be privileged (e.g. crime or fraud exception to attorney-client privilege).

Pre-Divorce Planning

QUESTION #7

What if Client terminates the attorney-client relationship when Lawyer tries to dissuade Client

from committing the conduct or to persuade Client to take corrective action?

Pre-Divorce Planning

Rule 1.05 Comment 21

If disclosure during the relationship was permissive, disclosure thereafter remains permissive.

Resolving Disputes

QUESTION #8

When Lawyer’s favorite Clients, Husband and Wife, are divorcing, what can Lawyer do?

Resolving Disputes

Rule 1.06 (a)

Lawyer shall not represent opposing parties to the same litigation.

Resolving Disputes

QUESTION #9

What if Clients say they already have an agreement as to all matters?

Resolving Disputes

Rule 1.06 Comment 2

“Opposing parties” contemplates a situation where a judgment favorable to one would directly impact unfavorably upon the other.

Resolving Disputes

QUESTION #10

Prior to divorce litigation, can Lawyer represent Clients in negotiations concerning the division of their

assets?

Resolving Disputes

Rule 1.06(b)(1)

Lawyer shall not represent a person if representation of that person involves a substantially related matter in which that person’s interests are materially and directly adverse to the interest of another Client.

UNLESS

(c) (1) Lawyer reasonably believes the representation of each Client will not be materially affected, and

(2) each Client consents under full disclosure.

Resolving Disputes

QUESTION #11

What does “directly adverse” mean?

Resolving Disputes

Rule 1.06 Comment 6

When Lawyer’s independent judgment on behalf of Client or Lawyer’s ability or willingness to consider, recommend or carry out a course of action will be or is reasonably likely to be adversely affected by Lawyer’s representation of, or responsibilities to, the other Client; OR

If Lawyer is called upon to espouse adverse positions in the same matter or a related matter.

Resolving Disputes

QUESTION #12

If joint representation is not recommended or viable in a divorce situation, can Lawyer act as an

intermediary?

Resolving Disputes

Rule 1.07(d)

Intermediary = when Lawyer represents two or more parties with potentially conflicting interests.

Comment 9: Where Lawyer is intermediary, Clients ordinarily must assume greater responsibility for decisions than when each Client is independently represented.

Rule 1.07 (a)

Lawyer shall not act as intermediary between Clients unless: (1) Lawyer consults with each Client concerning the common representation and

obtains each Client’s written consent; (2) Lawyer believes matter can be resolved without necessity of contested litigation

on terms compatible with Clients’ best interests, that each will be able to make adequately informed decisions and that there is little risk of material prejudice if intermediation is unsuccessful; and

(3) Lawyer reasonably believes common representation can be undertaken impartially and without improper effect to any Client.

Resolving Disputes

QUESTION #13

When must Lawyer cease intermediary representation?

Resolving Disputes

Rule 1.07(c)

Lawyer shall withdraw if any of the Clients request or if any condition in subpart (a) is no longer satisfied.

Comment 4:

(1) Lawyer cannot undertake intermediary representation of Clients between whom contested litigation is reasonably expected or who contemplate contentious negotiations.

(2) If the relationship between the parties has already assumed definite antagonism, the possibility that Clients’ interests can be adjusted by intermediation ordinarily is not very good.

Handling Litigation

QUESTION #14

One Client terminates attorney-client relationship. Can Lawyer represent the other in the divorce?

Handling Litigation

Rule 1.09

Without prior consent, Lawyer shall not represent another person in a matter adverse to the former Client:

(1) in which such person questions the validity of Lawyer’s services or work product;

(2) if the representation in reasonable probability would involve inappropriate disclosure or use of confidential information of former Client; or

(3) if it is the same or substantially related matter.

Handling Litigation

QUESTION #15

Is a divorce “the same or a substantially related matter” to prior estate or business planning

performed for former Client?

Handling Litigation

Rule 1.09

Comment 4A: “same” = this divorce proceeding

Comment 4B: “substantially related” = situations where Lawyer could have acquired confidential information concerning a prior Client that could be used either to prior Client’s disadvantage or for the advantage of Lawyer’s current Client or some other persons.

Comment 8: “Substantial relationship” test used by courts for purposes of disqualification of counsel in litigation.

Lawyer as Witness

QUESTION #16

If Lawyer expects to be a witness in a divorce, can Lawyer represent the Client in the proceeding?

Lawyer as Witness

Rule 3.08

(a) Lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending proceeding if Lawyer knows or believes that Lawyer is or may be a witness necessary to establish an essential fact on behalf of Client, unless: (1) uncontested issue (2) solely a matter of formality/no opposition (3) as to nature and value of legal services (4) Lawyer is a party and acting pro se(5) Lawyer promptly notified opposing counsel and disqualification

would work substantial hardship on Client.(b) Lawyer shall not continue as advocate if Lawyer believes that

Lawyer will be compelled to furnish testimony substantially adverse to Client, unless Client consents after full disclosure.

Lawyer as Witness

QUESTION #17

Lawyer accepts engagement to represent one spouse. Lawyer’s Firm thereafter receives discovery request.

How should Firm respond?

Lawyer as Witness

Discovery request to Firm:

(1) All of Wife’s files (former Client) (2) All of Husband’s files (current Client) (3) All of Entity, Inc.’s files (Husband’s corporation).

Issues

(1) Privileges: identity of Clients of Lawyer(2) Multiple clients: open or closed relationship(3) Entitlement to Client’s own files (Rule 115(d))(4) Rule 1.09 considerations (5) Rule 3.08 considerations

Lawyer as Witness

QUESTION #18

Firm receives a notice of deposition. How should Firm respond?

Lawyer as Witness

Notice of Deposition to Firm

Subjects covered:

(1) Characterization of all assets and/or liabilities of Husband and Wife(2) All planning related to business opportunities Husband invested in through his

separate estate. (3) All irrevocable intervivos trust and/or charitable or non-charitable gift planning

entered into by Husband using community property.(4) All planning related to accumulation of income in trusts and/or partnerships which

are Husband’s separate property.(5) All planning related to expenditures and/or exhaustion of community estate.(6) All planning related to compensation of Husband from his separate property entities.

Issues

(1) Privileges: identity of Clients of Lawyer(2) Multiple clients: open or closed relationship(3) Entitlement to Client’s own files (Rule 115(d))(4) Rule 1.09 considerations (5) Rule 3.08 considerations