Waiving Conflict of Interest

[toomanydogs]

I know everyone's relationship/marriage is different, and I know everyone's divorce is likewise different, but I'm wondering if anyone has run into something similar.

First, I admit I have been burned in the past by lawyers; as a result, I'm going to double check whatever I'm told by a lawyer. That's my own baggage, you know?

So, onto the problem. My STBX and I lived for 10 years off his trust, administered at the sole discretion of his father, my FIL.

When I married STBX, I was required to sign a prenup. I will call the lawyer who represented me Gabriel.

Now flash forward to the current mess.

In my first offer to settle the divorce, I requested the marital home (owned by the Trust) and money to live on.

My STBX "counter offered" with a ridiculously low offer, which neither my L nor I took seriously.

I then came up with another offer; I dropped the amount of money by a bit, and I again asked for the house.

At this point or before, I discovered the Trust had its own law firm representing it. Of counsel on that law firm is Gabriel.

I let my lawyer know. At first, she said it wasn't a conflict of interest. I double checked with friends who are lawyer, also read statute and case law. It was definitely a conflict.

Then she said it wasn't a big conflict, and then she said that if we got rid of the law firm, we could end up with a worse firm that was litigious.

Okay, so today, I get an email. Law firm that represents Trust is filing a motion for the Trust to intervene in the divorce, specifically so it can protect its asset--the house.

My lawyer said she has no problem with the Trust intervening, and she said that now would be the time to raise the issue of conflict of interest and waive it. She again explained that we could end up with a more litigious law firm.

I feel frightened and anxious because I don't have enough experience to judge whether waiving that conflict is in my best interest. I wrote my L and said I don't have info currently to comfortably waive the conflict, could I temporarily waive the conflict?

I also let her know that the motion sounded, to me, as if the Trust were getting ready to evict me and could they do that?

Anyone have any experience with this? I will tell you the only thing harder than being married to my STBX is divorcing him.

TMD

[david]

I think you have to talk to several attorneys in your area to find out how this should be handled.
My ex hired an attorney in 2007 as did I. We were in and out of court for several years. I needed to learn the way things worked in our county and when I realized the questions I needed task I discovered my attorney was not that good. I found a good attorney in 2010. In and out of court for another year. Ex's attorney then got a job at my attorneys firm. I had to sign a release to let exs' attorney still represent her since being in the same firm was a conflict. I asked my attorney and he recommended I not sign anything since it would make my exs' situation more challenging.
I learned that the legal system has a set of rules to "play" by and that the best course of action is to "play" by the rules and use them to your advantage.
Finding out what the legal ramifications are and what the best course of action would be require consultation with attorneys in that area. I suspect, but I am not an attorney and don't know what the legal ramifications are, that the trust would have to allow you to be represented by the same firm. Again, I would consult several attorneys in the area for the best course of action.

[GaGrl]

This potential conflict has come up several times before n your postings. Frankly, I would not be comfortable with that flowers relationship between the original pre-nip lawyer and the current trust lawyers. Yes, it feels like a setup.

Your lawyer seems quite cozy with the situation. Perhaps you need more litigious legal representation than you are getting.

[toomanydogs]

This potential conflict has come up several times before n your postings. Frankly, I would not be comfortable with that flowers relationship between the original pre-nip lawyer and the current trust lawyers. Yes, it feels like a setup.

Your lawyer seems quite cozy with the situation. Perhaps you need more litigious legal representation than you are getting.

I declined to waive the conflict and let my attorney know.
If this thing does go to litigation, there is a lawyer with a different firm whose practice is limited to divorce litigation. I'll hire him, and since I've already spoken with that firm on more than one occasion, I'll be able to hire him without worrying about any conflict.
To think, I'd once expected this divorce to be resolved quickly and without animosity. Boy, was I naive.
TMD

[david]

My ex filed for divorce in 2007. If I objected there was a two year waiting period. I did not. Our divorce was finalized in late 2010. Ex delayed things through various legal means ? Once I stopped trying to reason/figure things out/etc. and just followed the rules of the game the easier things got for me. It took me a while to get emotionally detached. When that happened I was able to think through things clearly and resolve things with minimal effort and $$$.

[formflier]

Not trying to play both sides here... .but I think your L's advice was reasonable.  It CAN always get worse.

I'm surprised that she didn't try to negotiate something in exchange for the waiver (as an act of good will).  It is good for lawyers to be cooperative, rather than flamethrower each other.

At the end of the day though... .I would be hard pressed to waive the conflict, without serious consideration for that waiver.

There is a reason for "checking for conflicts".

FF

[toomanydogs]

Not trying to play both sides here... .but I think your L's advice was reasonable.  It CAN always get worse.
yep, i completely agree, and yet, i don't want to base my decision on what i'm afraid might happen.

I'm surprised that she didn't try to negotiate something in exchange for the waiver (as an act of good will).  It is good for lawyers to be cooperative, rather than flamethrower each other.
in my response to her, i suggested that it would be easier for me to waive conflict if i had some idea of what my FIL was going to offer. they need to offer something. as of right now, they haven't been paying my legal fees either, which means i'll either sell something or take in a roommate.

At the end of the day though... .I would be hard pressed to waive the conflict, without serious consideration for that waiver.
i have a friend who's a lawyer and she told me i might have a malpractice claim against the L who represented me with the prenup. another reason not to waive the conflict.

FF

Thanks, FF. I've been reading your posts on a different thread. I wasn't sure what to offer except that my heart is with you. Your wife, in many respects, sounds like my STBX, and I know how challenging it can be to maintain emotional equilibrium when faced with BPD behavior.
TMD

[ForeverDad]

I might have a malpractice claim against the L who represented me with the prenup, another reason not to waive the conflict.

I bet that's the elephant in the room or at least one of them.

My understanding is that some states require for a prenup to be valid that both parties have legal representation, separate representation.  What is your state's requirement?

[formflier]

Lawyers that sue lawyers are a bit of a different breed.

I would use "boundaries" in this and not discuss this option with your current L.

In addition to a malpractice claim there could be complaints or ethical filings with the Bar. 

However, I would say that you would have to show that the prenup representation "damaged" you in a some way.  If you are getting a settlement "over and above" what the prenup says then that would be harder to do.

In that case, the damaged party would be the trust.


Switching gears:  Thanks for the support.  A frustrating part of this is that there is no "truth" that matters to her.  One day she feels a certain way and I'm not disabled, another day she might be somewhat supportive.

On all the days... I'm attached to my body... .and have a firm grip on the "truth"... .sigh.

FF