In Re the Marriage of Perry
293 P.3d 170, 368 Mont. 211, 2013 MT 6 (2013)
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Rule of Law:
Under Montana Rule of Professional Conduct 1.20, an attorney is not disqualified from representing a client against a former prospective client in the same matter unless the attorney received information during the initial consultation that could be "significantly harmful" to the prospective client in the litigation.
Facts:
- In January 2008, Karen Perry contacted attorney Gail Goheen's office to seek legal advice regarding a potential divorce from her husband, Terance Perry.
- Karen had at least one phone conversation with Goheen and spoke with her assistant.
- Karen claimed that during these calls, she provided confidential details about her marriage, including domestic abuse, finances, settlement goals, and personal weaknesses.
- Goheen's records and testimony indicated the primary call lasted less than 12 minutes, that she did not solicit detailed information per her office policy, and that she made a subsequent 2-3 minute call to refuse the case.
- Goheen formally declined to represent Karen, citing a policy against representing someone against an attorney from a firm she regularly opposed, and no attorney-client relationship was formed.
- In February 2011, during the Perrys' divorce proceedings, Goheen began representing Karen's husband, Terance.
Procedural Posture:
- On December 4, 2009, Terance Perry filed a petition for dissolution of his marriage to Karen Perry in the Fourth Judicial District Court in Missoula County.
- On February 25, 2011, after being represented by other counsel, Terance substituted Gail Goheen as his attorney of record.
- On March 1, 2011, Karen filed a motion in the District Court to disqualify Goheen from representing Terance.
- The District Court held a hearing on the motion, where it heard testimony from Karen, Goheen, and Goheen's assistant.
- The District Court denied Karen's motion to disqualify, finding that no attorney-client relationship was formed and that Karen had not disclosed any significantly harmful information to Goheen.
- Karen Perry, as appellant, appealed the District Court's denial of her motion to the Supreme Court of Montana.
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Issue:
Does representing a husband in a dissolution proceeding violate an attorney's duty to the wife, a former prospective client, under Montana Rule of Professional Conduct 1.20, when the wife fails to demonstrate she shared information during the consultation that could be significantly harmful to her in the matter?
Opinions:
Majority - Justice Rice
No. Representing the husband does not violate the attorney's duty to the wife as a prospective client under Montana Rule of Professional Conduct 1.20 because the wife failed to prove she shared information that could be significantly harmful to her in the dissolution matter. The court clarified that Rule 1.20, which governs duties to prospective clients, establishes the controlling standard, superseding prior tests that focused on whether an implied attorney-client relationship existed. The dispositive question under this rule is not merely whether confidential information was shared, but whether the specific information received could be 'significantly harmful' to the prospective client in the litigation. The trial court found Goheen's account of the brief, non-substantive conversations to be more credible than Karen's. Karen’s assertion of 'psychological harm' or a sense of betrayal does not satisfy the rule's requirement for information that could cause tangible, significant harm to her legal position in the proceeding.
Analysis:
This case establishes the modern standard in Montana for attorney disqualification involving prospective clients, formally adopting the 'significantly harmful information' test from Rule 1.20. The decision shifts the focus from the prospective client's subjective belief about forming a relationship to an objective assessment of the information actually transmitted. This sets a higher and more concrete bar for disqualification, potentially discouraging tactical motions aimed at depriving an opponent of their chosen counsel. By distinguishing emotional or psychological harm from legally significant harm, the court narrows the grounds for such challenges and reinforces the principle that disqualification is an extraordinary remedy reserved for clear conflicts of interest that threaten the fairness of the proceedings.
