Both Sides Now
An attorney with a record of prior discipline was suspended for 18 months by the Wisconsin Supreme Court. The case involved a husband and wife who were each represented by counsel in a divorce case that was scheduled for trial. Husband suggested to wife that they would be better off with a single lawyer. Respondent agreed to be that lawyer. The other attorneys withdrew and Respondent did not promptly enter an appearance. His attempt to postpone the trial failed as he was not yet counsel of record in the case.
At trial, he purported to represent only the husband. He failed to secure financial information pertinent to wife’s rights and otherwise favored husband:
…the referee found that the “credible evidenceestablishes that Attorney Gamiño did not advise N.B. before the final hearingthat he would not be representing her in the divorce action.” AttorneyGamiño thus violated SCR 20:1.9(a),[4]which provides that a lawyer who has formerly represented a client in a mattershall not represent another person in the same or a substantially similarmatter in which the person’s interests are materially adverse to the interestsof the former client unless the former client consents in writing afterconsultation. The referee observed:
N.B. had no real information regarding her husband’spension accounts. She was disabled underSocial Security and likely could not work. She had been a past victim of domestic abuse by E.B.. The marital settlement agreement did not giveher the $98,000 that she was to get from her husband’s known pensionaccounts. Under the guise ofmaintenance, she was to get $500 per month toward her share (the $98,000) ofthe property division. However, thosepayments were not guaranteed in the event of E.B.’s death. This approach meant that the alleged maintenancewas a tax deductible expense for E.B. and N.B. would be obligated to pay taxeson what in fact were payments to her over time of her share of the maritalestate. Attorney Gamiño knew or shouldhave known all of this information. Itwas as expert witness Hickey said. Theconflict was not waivable by Attorney Gamiño regarding the adverse position ofthese parties. Under Attorney Gamiño’sduty of loyalty to N.B., he was obligated to disabuse N.B. as to the patentlyunfair divorce agreement that was being offered to the court. N.B. could potentially waive the conflict hadshe been informed of her rights, but there was no such advice given to N.B. byAttorney Gamiño and no written waiver ever was prepared or signed. AttorneyGamiño had critical knowledge as to N.B. that created an insurmountableconflict and made it impossible for him to continue to represent E.B., anadverse party to N.B., his former client, in the divorce.
Thus, the referee concluded that the OLR established by clear,satisfactory and convincing evidence that Attorney Gamiño violated [conflicts rules].
In imposing sanction, the court considered the fact that this conduct occurred in the same time frame as the earlier sanction, which involved an improper sexual relationship with a client and the mother of a juvenile client. The court’s order includes a CLE requirement, but I think it will take more than CLE to educate him if he did not see the non-waivable conflict here. (Mike Frisch)