State Ex Rel. Diane Thompson v. Dueker

• Decision Date: 09 August 2011
• Docket Number: No. ED 96570.,ED 96570.
• Citation: 346 S.W.3d 390
• Parties: STATE of Missouri ex rel. Diane THOMPSON, Relator,v.Honorable Joseph S. DUEKER, Associate Circuit Judge, St. Louis County, State of Missouri, Respondent.
• Court: Missouri Court of Appeals

346 S.W.3d 390

STATE of Missouri ex rel. Diane THOMPSON, Relator,

v.Honorable Joseph S. DUEKER, Associate Circuit Judge, St. Louis County, State of Missouri, Respondent.

No. ED 96570.

Missouri Court of Appeals, Eastern District, Writ Division Seven.

Aug. 9, 2011.

Theodore S. Schechter, Kristen J. Dunnett, The Schechter Law Firm, P.C., Clayton, MO, for relator.Alan E. Freed, Susan E. Block, Paule, Camazine & Blumenthal, St. Louis, MO, for respondent.KATHIANNE KNAUP CRANE, Presiding Judge.

Relator, Diane Thompson, seeks a writ of prohibition prohibiting respondent, the Honorable Joseph S. Dueker, from enforcing his order of March 8, 2011, which ordered the Schechter Law Firm, P.C., to withdraw from its representation of relator on a motion to modify a dissolution decree. We entered a preliminary order in prohibition, which we now make permanent.

On September 13, 2006, relator's former husband, John Christopher Thompson, (hereinafter, husband) met with attorney Jeffrey Schechter of the Schechter Law Firm. Husband subsequently engaged other counsel to represent him in the proceedings to dissolve his marriage to relator (hereinafter, wife), which proceedings commenced in October 2006, and resulted in a dissolution decree entered on September 14, 2007.

On August 2, 2010, husband, represented by the Paule, Camazine & Blumenthal law firm, filed a motion to modify the dissolution decree, in which he sought to have his modifiable maintenance obligation of $5000 per month reduced or terminated because of a change in his financial circumstances caused by the effects of the economy on his business that significantly reduced his income. On September 22, 2010, Theodore Schechter and the Schechter Law Firm entered their appearance on wife's behalf.

Husband subsequently filed a request for an order that the Schechter Law Firm withdraw from representing wife pursuant to section 4–1.9 of the Missouri Rules of Professional Conduct. In his motion, husband alleged that he had “met with Jeffrey Schechter and shared with him both personal and business information,” that he “considers himself to be a former client of the Schechter firm,” and that he had not consented to wife being represented by that firm. He attached a printout of the front of a check signed by husband and dated September 14, 2006, payable to The Schechter Law Firm in the amount of $140.00, with the words “Divorce Consultation” in the memo line.

At the subsequent evidentiary hearing on the motion, husband testified that he met with Jeffrey Schechter of the Schechter Law Firm in mid-September 2006. Husband testified that the meeting lasted for about an hour, during which he discussed “personal and confidential information about my business and my personal life” with Jeffrey Schechter. Husband testified that he paid the Schechter Law Firm for the consultation. Husband believed that he contacted Jeffrey Schechter a second time by telephone and told Jeffrey Schechter that he was being represented by another lawyer. He did not have any further contact with Jeffrey Schechter, and he never spoke with anyone else at the Schechter Law Firm. Husband never signed an engagement letter with the Schechter Law Firm. Husband testified that the Schechter Law Firm did not represent him “in any way” in the subsequent dissolution action. Husband did not recall that Jeffrey Schechter ever told husband that he was husband's lawyer. Husband testified that he gave Jeffrey Schechter some confidential business information in 2006 that would “affect” his motion to modify, and that this information was never disclosed in discovery, statements of income and expense, statements of property, exhibits, or at trial in the dissolution action.

Jeffrey Schechter testified that although he had no recollection of meeting husband, he had located an office intake form which bore husband's name and some notes. From this document he concluded that he met with husband for about thirty minutes. He testified he was never engaged by husband to represent him, husband did not sign a fee agreement, and husband did not pay a retainer fee. He testified that there was nothing in his notes that did not later appear in the division of assets attached to the dissolution decree, except the date of the parties' marriage, the ages of their children, and the name of the children's school. He further testified that there was nothing in those notes that related to the 2010 motion to modify, and that his only knowledge of any communication from husband was contained in those notes.

On March 8, 2011, the trial court entered an order granting husband's request for the Schechter Law Firm to withdraw its representation of wife. Wife petitioned this court to prohibit the trial court from enforcing its order. We entered a preliminary order in prohibition and ordered briefs to be filed.

DISCUSSION

“A writ of prohibition is available: (1) to prevent a usurpation of judicial power when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority, jurisdiction or abuse of discretion where the lower court lacks the power to act as intended; or (3) where a party may suffer irreparable harm if relief is not granted.” State ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 32 (Mo. banc 2010); see also State v. Pratte, 298 S.W.3d 870, 880 (Mo. banc 2009). The irreparable harm category makes prohibition available “when there is an important question of law decided erroneously that would otherwise escape review by this Court, and the aggrieved party may suffer considerable hardship and expense as a consequence of the erroneous decision.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994). This category allows prohibition to be considered as a remedy if a trial court disqualifies a lawyer from representing a client because the trial court's judgment, if erroneously entered, would cause considerable hardship and expense and the issue would otherwise escape appellate review. See The Parish v. Hettenbach, 303 S.W.3d 591, 598 (Mo.App.2010); State ex rel. Wallace v. Munton, 989 S.W.2d 641, 645 (Mo.App.1999).

In addition, “ ‘[t]he disqualification of an attorney is a matter that lies within the sound discretion of the trial court.’ ” Parish, 303 S.W.3d at 598 ( quoting Raster v. Ameristar Casinos, Inc., 280 S.W.3d 120, 133 (Mo.App.2009)). A writ of prohibition is also appropriate when a court's ruling on a motion to disqualify counsel amounts to an abuse of discretion. Parish, 303 S.W.3d at 598.

Wife first argues that respondent abused his discretion in ordering the Schechter Law Firm to withdraw because no conflict of interest exists under Missouri Rule of Professional Conduct 4–1.9(a). We agree for the reasons that Rule 4–1.9(a), which applies to conflicts of interest with former “clients,” is inapplicable because husband never retained the Schechter Law Firm to represent him; rather, husband was a “former prospective client” under Rule 4–1.18, and any conflict of interest would be governed by Rule 4–1.18, not Rule 4–1.9(a).

Rule 4–1.9(a) governs conflicts of interest with former clients. In re Carey, 89 S.W.3d 477, 492 (Mo. banc 2002); Parish, 303 S.W.3d at 600. Rule 4–1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter 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 gives informed consent, confirmed in writing.

“To establish a conflict of interest under Rule 4–1.9, a movant must prove that: (1) the attorney had a former attorney-client relationship with the movant; (2) the interests of the attorney's current client are materially adverse to the movant's interests; and (3) the current representation involves the same or a substantially related matter as the attorney's former representation of the movant.” Parish, 303 S.W.3d at 601.

An attorney-client relationship exists when a prospective client seeks and receives legal advice and assistance from an attorney who intends to undertake to provide legal advice and assistance to the prospective client in a particular matter. Donahue v. Shughart, Thomson & Kilroy, PC, 900 S.W.2d 624, 626 (Mo. banc 1995); see also Parish, 303 S.W.3d at 601; Fox v. White, 215 S.W.3d 257, 261 (Mo.App.2007); Mid–Continent v. Daniel Clampett Powell, 196 S.W.3d 595, 598 (Mo.App.2006); Collins v. Missouri Bar Plan, 157 S.W.3d 726, 736 (Mo.App.2005); World Resources, Ltd. v. Utterback, 943 S.W.2d 269, 271 (Mo.App.1997); Restatement (Third) of the Law Governing Lawyers § 14 (2000).¹ In determining whether such a relationship has been established, a court looks to the “substantive nature of the contacts within the relationship, ‘regardless of what formal or procedural incidents have occurred.’ ” Parish, 303 S.W.3d at 601 (quoting McFadden v. State, 256 S.W.3d 103, 107 (Mo. banc 2008)). Mere payment of a fee without proof that the payor received legal advice or assistance from the attorney or that the attorney intended to provide the client with legal advice or assistance, does not show an attorney-client relationship. Mid–Continent, 196 S.W.3d at 598 (citing Leidy v. Taliaferro, 260 S.W.2d 504, 507 (Mo.1953)). In addition, “belief in an attorney-client relationship is insufficient to create such a relationship.” Mid–Continent, 196 S.W.3d at 599 (citing Multilist Serv. of Cape Girardeau v. Wilson, 14 S.W.3d 110, 114 (Mo.App.2000)); see Utterback, 943 S.W.2d at 271–72.

In this case, the undisputed evidence shows that husband did not have an attorney-client relationship with the Schechter Law Firm. The Schechter Law Firm did not represent husband in the dissolution action. Husband did not testify that during the consultation he sought or received any legal advice or assistance from Jeffrey Schechter, and Jeffrey Schechter testified only that he made notes about information that...