In Re the Marriage of Perry
293 P.3d 170
Mont.2013Background
- Terance Perry filed for dissolution in Missoula; Karen Perry sought to disqualify Goheen from representing Terance.
- Terance later substituted Goheen as counsel of record; Goheen began representation after prior counsel.
- Karen had pre-consultations with Goheen (2008) seeking dissolution advice and discussed confidential matters.
- A hearing on disqualification was held (Nov. 2011); documents were sealed and cross-examination limited.
- District Court denied disqualification, finding no attorney-client relationship and that Karen’s motion was a delay tactic; Karen appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the District Court err denying disqualification under Rule 1.20? | Perry asserts an implied prospective-client/confidential info issue. | Perry asserts no harmful information was conveyed; no prospective-client conflict. | No abuse of discretion; no significantly harmful info disclosed under 1.20(c). |
| Did Goheen violate Rule 1.9 by loyalty to former client? | Karen argues Goheen violated duties to former clients via 1.9. | No former-client relationship; 1.20 controls. | No violation; information use governed by 1.20, not 1.9. |
| Was Goheen properly allowed to testify at the hearing? | Goheen should be barred as an advocate-witness under 3.7. | Testimony related to nature and value of services; not disqualified. | Yes, Goheen’s testimony permitted under 3.7(a)(2). |
| Did the court err by relying on privileged communications? | Documents/notes were privileged; their use violated privilege. | Karen waived privilege by filing disqualification motion; fairness requires examination. | Privilege effectively waived; district court properly allowed limited use. |
| Was due process violated by reliance on non-cross-examined material? | Karen contends lack of cross-examination on certain materials. | Rule 12 pleadings; argument not supported by law. | Issue not pursued; declined to consider further. |
Key Cases Cited
- Pro-Hand Services Trust v. Monthei, 2002 MT 134 (2002 MT 134) (defined prospective client and duty not to reveal info)
- Krutzfeldt Ranch, LLC v. Pinnacle Bank, 363 Mont. 366 (2012 MT 15) (abuse of disqualification standards; factual review)
- Schuff v. A.T. Klemens & Son, 2000 MT 357 (2000 MT 357) (abuse of discretion standard; evidence admissibility)
- City of Whitefish v. Bd. of Co. Commrs. of Flathead Co., 347 Mont. 490 (2008 MT 436) (deference to law conclusions; standard of review)