No Conflict Found Where Attorney Challenged Prenup She Had Reviewed For Client

An attorney who had counselled a client in connection with a prenuptial agreement that barred post-divorce spousal support later represented that same client when she later claimed she had misunderstood and been pressured to sign the agreement.

By a 2-1 vote, an Oregon Trial Panel concluded that the change in postion did not amount to a sanctionable conflict of interest.

The client came from Russia and had wed a U.S. citizen

Voytyuk came to Oregon on a “fiancée visa,” planning to marry Lamb. She moved in with him and a wedding date was set in June of 2007. A few days before the wedding, Lamb told Voytyuk that she had to sign a prenuptial agreement (the “Agreement”) or else he would not marry her and she would be forced to return to Russia. Lamb presented her with the Agreement that had been drafted by his lawyer. He told Voytyuk that she needed to have the Agreement reviewed by a lawyer. Lamb randomly selected Respondent to advise Voytyuk, apparently picking Respondent’s name from the phone book. Lamb and Respondent had no prior relationship.

The marriage took place in 2007. The client retained the attorney in 2017 to seek a divorce and undo the agreement

Respondent filed an opposition to the motion on October 13, 2017. The response stated that, “Petitioner did not sign the prenuptial agreement voluntarily … Petitioner was under duress at the time she signed the agreement, and did not understand English well…” Ex. 17. Voytyuk also signed a declaration in which she stated, “I showed the prenuptial agreement to Ms. Smith-Koop, but I really did not understand it. I did not speak much English at that time because I had very little practice, and I did not understand listening to it. I signed the prenuptial agreement, but not voluntarily.” Ex. 17.

The judge raised the conflicts issue and threatened a bar complaint if the attorney did not withdraw

Respondent disagreed because her certification only stated that the client had told her that she understood the agreement, which Voytyuk had done.

The attorney withdrew

Voytyuk was very upset about this turn of events and did not believe she and her lawyer had a conflict. Tr. at 40-41. She briefly hired another lawyer, but ultimately had to proceed pro se. The judge granted the motion for partial summary judgment, rejecting Voytyuk’s claim of duress and lack of understanding. In the end, however, Voytyuk was awarded spousal support on another basis argued by Respondent...

The trial panel found no conflict

The Bar’s argument suffers from the same flaw that caused the judge to believe a conflict existed. The Bar states that “[Respondent] certified that Voytyuk had understood the agreement.” Respondent did not certify that fact. Respondent certified that Voytyuk acknowledged she understood the agreement. There is no dispute that Voytyuk expressly told Respondent that she understood the agreement. Voytyuk later revealed that she lied to Respondent when she said this, but the Bar produced no evidence that Respondent should have been aware of this. Absent evidence to the contrary, an attorney is entitled to rely on a client’s assurances that she understands what the attorney is explaining.

...In this case we find no actionable error on the part of Respondent that could have affected her judgment.

Dissent

The respondent admits to knowing on October 12th 2017 her client’s position on the prenuptial differed from the representation in 2007 when the client signed the prenuptial agreement and the respondent signed the certification. As the Bar contends, this presented a conflict of interest limiting the respondent’s ability to advise and represent her client. The respondent should have recognized the conflicts of interest reconciling her advice in 2007 with her statements in the 2017 dissolution and spousal support matter. The potential conflicts include: Exposure to claims from either party to the prenuptial agreement for an error in certification; Exposure to claims from her client for inadequately advising her in 2007; Or becoming a witness in the spousal support matter.

The panel recommends a reprimand if the misconduct finding is rejected on appeal. (Mike Frisch)