HomeMy WebLinkAbout98-1547 civilROBERT F. RYAN, :
PLAINTIFF :
:
V. :
:
FRANCES C. RYAN, :
DEFENDANT :
IN RE: PETITION OF DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
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TO DISQUALIFY PLAINTIFF'S ATTORNEY
OPINION AND ORDER OF COURT
BAYLEY, J., February 10, 1999:--
Plaintiff, Robert F. Ryan, and defendant, Frances C. Ryan, were married on
August 27, 1988. Husband filed a complaint in divorce on March 20, 1998. His
attorney is Marcus A. McKnight, III, Esquire. Wife filed a petition to disqualify
McKnight. A hearing was conducted on February 9, 1999.
Prior to their marriage, defendant sought a prenuptial agreement and retained
Marcus McKnight to represent her. On August 23, 1988, plaintiff and defendant
signed a Prenuptial Agreement prepared by McKnight. Plaintiff was not separately
represented although he paid McKnight to draft the agreement. On March 9, 1991,
husband and wife executed an "Amendment To And Restatement Of Prenuptial
Agreement." Neil Hendershot, Esquire, drafted the amendment.
Wife maintains that the representation of her husband in this divorce action by
the attorney who drafted the 1988 prenuptial agreement violates Rule 1.9 of the Rules
of Professional Conduct. Rule 1.9 provides:
A lawyer who has formerly represented a client in a matter shall
not thereafter:
(a) represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to
the interests of the former client unless the former client consents after a
full disclosure of the circumstances and consultation; or
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(b) use information relating to the representation to the
disadvantage of the former client except as Rule 1.6 would permit with
respect to a client or when the information has become generally
known. (Emphasis added.)
The Comment to Rule 1.9 states in part:1
After termination of a client-lawyer relationship, a lawyer may not
represent another client except in conformity with this Rule. The
principles in Rule 1.7 determine whether the interests of the present and
former client are adverse. Thus, a lawyer could not properly seek to
rescind on behalf of a new client a contract drafted on behalf of the
former client ....
The scope of a 'matter' for purposes of Rule 1.9(a) may depend
on the facts of a particular situation or transaction. The lawyer's
involvement in a matter can also be a question of degree. When a
lawyer has been directly involved in a specific transaction, subsequent
representation of other clients with materially adverse interest clearly is
prohibited. On the other hand, a lawyer who recurrently handled a
type of problem for a former client is not precluded from later
representing another client in a wholly distinct problem of that type
even though the subsequent representation involves a position
adverse to the prior client .... The underlying question is whether
the lawyer was so involved in the matter that the subsequent
representation can be justly regarded as a changing of sides in the
matter in question.
Information acquired by the lawyer in the course of representing a
client may not subsequently be used by the lawyer to the disadvantage
of the client. However, the fact that a lawyer has once served a client
does not preclude the lawyer from using generally known information
about that client when later representing another client .... (Emphasis
added.)
In Triffin v. DiSalvo, 434 Pa. Super. 326 (1994), the Superior Court of
Pennsylvania utilized the "substantial relationship test" to determine, based on the
nature and scope of prior representation, whether confidential information that might
1. The Comment is not part of the Rule.
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have been gained in the first representation may be used to the detriment of the
former client in the subsequent action. The test is:
If the client in the prior representation might have imparted confidential
information to his lawyer to aid the lawyer in dealing with particular
issues, and if issues arise in the second suit which would permit the use
of such confidences against the original client, the substantial
relationship test is met, and disqualification is required.
In the case sub judice, both husband and wife testified that their prenuptial
agreement as amended is a binding contract. Neither will challenge the validity of the
contract in this case. Their dispute involves the equitable distribution of marital
property not subject to the amended prenuptial agreement. That is not the same or a
substantially related matter as the postnuptial agreement. Wife did not impart any
confidences to McKnight that would constitute an issue that will arise in the present
case. To the contrary, each party made a written disclosure of their property that was
attached to the prenuptial agreement. Accordingly, we find that McKnight's
representation of wife in drafting the prenuptial agreement did not violate Rule 1.9 of
See Miller v. Forbes, 45 Cumberland L.J. 414
the Rules of Professional Conduct.
(1996).
AND NOW, this ~
disqualify plaintiff's counsel, IS DENIED.
ORDER OF COURT
day of February, 1999, the motion of defendant to
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Marcus A. McKnight, III, Esquire
For Plaintiff
Robert Mulderig, Esquire
For Defendant
;saa
Edgar B. Bayley, J.
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