Wednesday, July 30, 2008
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 evidence establishes that Attorney Gamiño did not advise N.B. before the final hearing that he would not be representing her in the divorce action." Attorney Gamiño thus violated SCR 20:1.9(a), which provides that a lawyer who has formerly represented a client in a matter shall not represent another person in the same or a substantially similar matter in which the person's interests are materially adverse to the interests of the former client unless the former client consents in writing after consultation. The referee observed:
N.B. had no real information regarding her husband's pension accounts. She was disabled under Social Security and likely could not work. She had been a past victim of domestic abuse by E.B.. The marital settlement agreement did not give her the $98,000 that she was to get from her husband's known pension accounts. Under the guise of maintenance, she was to get $500 per month toward her share (the $98,000) of the property division. However, those payments were not guaranteed in the event of E.B.'s death. This approach meant that the alleged maintenance was a tax deductible expense for E.B. and N.B. would be obligated to pay taxes on what in fact were payments to her over time of her share of the marital estate. Attorney Gamiño knew or should have known all of this information. It was as expert witness Hickey said. The conflict was not waivable by Attorney Gamiño regarding the adverse position of these parties. Under Attorney Gamiño's duty of loyalty to N.B., he was obligated to disabuse N.B. as to the patently unfair divorce agreement that was being offered to the court. N.B. could potentially waive the conflict had she been informed of her rights, but there was no such advice given to N.B. by Attorney Gamiño and no written waiver ever was prepared or signed. Attorney Gamiño had critical knowledge as to N.B. that created an insurmountable conflict and made it impossible for him to continue to represent E.B., an adverse 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)