Kurbitz v. Kurbitz
| Decision Date | 30 April 1970 |
| Docket Number | No. 40941,40941 |
| Citation | 77 Wn.2d 943,468 P.2d 673 |
| Parties | Velma KURBITZ, Respondent, v. Albert B. KURBITZ, Petitioner, |
| Court | Washington Supreme Court |
Perry J. Robinson, Yakima, for petitioner.
Tonkoff & Dauber, J. P. Tonkoff, Yakima, for respondent.
Jack P. Scholfield, State Bar Counsel, Seattle, amicus curiae.
This proceeding brings into sharp focus the interpretation and application of Canons of Professional Ethics 6 and 37 to the facts of the instant case.
6.
Adverse Influences and Conflicting Interests.
It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with the controversy, which might influence the client in the selection of counsel.
It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.
The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences Forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed. (Italics ours.)
37. Confidences of a client. It is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment, and extends as well to his employees; and neither of them should accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information. A lawyer should not continue employment when he discovers that this obligation prevents the performance of his full duty to his former or to his new client. (Italics ours.)
The issues in this case are presented to us by a writ of certiorari granted to review an order of the superior court denying defendant's motion to exclude J. P. Tonkoff as counsel for plaintiff in this action.
After a thorough review of the record, we conclude that the order denying the motion must be reversed for the reason J. P. Tonkoff is disqualified from appearing in this case as counsel for plaintiff. 1 His name is, therefore, stricken from the record as counsel for plaintiff.
This conclusion is based upon the following:
For a number of years, the law firm of Tonkoff, Holst and Hopp, had represented defendant Albert B. Kurbitz in various legal matters, mostly involving the organization of certain corporations, in which Mr. and Mrs. Kurbitz have a substantial stock interest. See Evar, Inc. v. Kurbitz, Wash., 468 P.2d 677 (1970).
April 29, 1964, Sarah Caster, mother of Mr. Kurbitz, died. She left an estate appraised in the sum of $189,160.70. The bulk of the estate was left to her grandchildren, children of Mr. and Mrs. Jurbitz. Nothing was willed to Mr. Kurbitz; he was, however, named executor and trustee of the estate with the right and power to borrow money from the estate. Mr. Kurbitz borrowed $53,657.25. It has not been repaid. Mr. William B. Holst, a member of the law firm of Tonkoff, Holst and Hanson, was employed to probate the estate.
July, 1968, the law firm of Walters and Whitaker commenced this divorce action on behalf of Mrs. Kurbitz. August 4, 1968, Mr. Holst died.
In November, 1968, Mr. Tonkoff transferred the Caster estate file to counsel for Mr. Kurbitz.
Mr. Kurbitz was executor, trustee, and debtor of his mother's estate. After Mrs. Kurbitz commenced this divorce action, Mr. Kurbitz, as executor, assigned the estate's claim against himself to G. H. Parsons for collection. Mr. Parsons, in turn, brought suit against Mr. and Mrs. Kurbitz. In December, 1968, Mr. Kurbitz confessed judgment for $54,426.00 so that there appeared a community debt, which, of course, would embarrass plaintiff wife in reaching a property settlement with her husband in the instant case. Subsequently, Mrs. Kurbitz, through her lawyer, J. P. Tonkoff, had the judgment vacated upon the ground that it had been unfairly and fraudulently obtained.
Canon of Professional Ethics 6, Supra, makes legal representation of conflicting interests unethical unless the lawyer has made a complete disclosure to both parties and obtained their consent. Consent is absent in the instant case.
Canon 37, Supra, establishes that a lawyer has a duty both to his own former clients and to those former clients of the law firm of which he is a member.
Mr. Tonkoff argues that he is not governed by these canons in this litigation. He contends that while Mr. Kurbitz's counsel, Mr. Holst, was a member of Mr. Tonkoff's law firm, he--Mr. Tonkoff[468 P.2d 676] --did not personally handle Mr. Kurbitz's affairs; and that there is no proof that he possessed any of Mr. Kurbitz's confidential information. We do not accept this analysis. The...
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...discovers that this obligation prevents the performance of his full duty to his former or to his new client. See Kurbitz v. Kurbitz, 77 Wash.2d 943, 944, 468 P.2d 673 (1970). Generally, a lawyer owes a client a duty of loyalty that goes beyond the case at issue. The ABA Model Rules of Profe......
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