Sharon J. Sturdivant v. Timothy L. Sturdivant
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SUPREME COURT OF ARKANSAS
No.
05-1305
SHARON J. STURDIVANT,
APPELLANT,
VS.
TIMOTHY L. STURDIVANT,
APPELLEE,
Opinion Delivered October 26, 2006
A P P E A L FR O M T H E P U L A S K I
COUNTY COURT,
NO. DV 98-1956,
HON. MACKIE PIERCE, JUDGE,
AFFIRMED.
ANNABELLE CLINTON IMBER, Associate Justice
This is a case of first impression involving the interpretation of the Arkansas Rules
of Professional Conduct, more specifically Rule 1.18 (2006). The question raised on appeal
is whether the circuit court erred in disqualifying attorney James L. Tripcony and his law
firm from representing Appellant Sharon J. Sturdivant in a post-divorce custody proceeding
against Appellee Timothy L. Sturdivant. We affirm the order of the circuit court.
A summary of the relevant facts is as follows: On February 15, 2005, the Pulaski
County Circuit Court entered an amended decree and order that gave Timothy physical
custody of his minor children from Sunday evening of every week until Thursday evening,
as well as alternating weekend visitation. At that time, Sharon’s attorney of record was Dee
Scritchfield and Timothy’s attorney of record was Linda Shepherd.
Two months later, on April 25, 2005, James L. Tripcony filed his entry of appearance
as Sharon’s attorney of record in the divorce proceeding. Timothy’s counsel sent a letter to
Tripcony, notifying him that the Tripcony Law Firm had a conflict of interest that would
require his immediate withdrawal as Sharon’s attorney. Specifically, the letter stated that
Timothy had consulted with Heather May of the Tripcony Law Firm about a change of
custody before he retained the Shepherd Law Firm to represent him in the same matter. After
receiving the notice of a potential conflict, Sharon’s attorney filed a motion for relief from
order.
According to testimony elicited at a hearing on the motion, Timothy retained Linda
Shepherd to represent him in the divorce proceeding after a “lengthy consultation” with
Heather May of the Tripcony Law Firm about his desire to seek a change of custody. May
took notes during the consultation and Timothy gave her a copy of a journal in which he had
recorded matters involving him, Sharon, and the children. He also disclosed facts that were
not in the journal and told May everything he knew regarding the children and his concerns
about his former wife. The journal was eventually disclosed to opposing counsel in the
earlier custody proceeding that culminated in the entry of the February 15, 2005 amended
decree and order. Finally, Timothy confirmed that he did not retain the Tripcony Law Firm
to represent him in the custody proceeding.
Tripcony advised the court that when he was notified of the potential conflict, he and
May checked their office files to find out whether Timothy had been in the office. Upon
discovering that Timothy had indeed consulted with May, Tripcony consulted the newly
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revised rules of professional conduct concerning prospective clients. See Ark. R. Prof’l
Conduct 1.18 (2006). He further stated that he and May reviewed her notes and determined
that they had no information that would be harmful to Timothy. Following his review of
May’s consultation notes and the Arkansas Rules of Professional Conduct, Tripcony
concluded that disqualification would not be warranted under Rule 1.18.
The circuit court ruled otherwise in an order entered on September 1, 2005, that
disqualified Tripcony and his law firm from representing Sharon. Specifically, the court
found that prior to Shepherd being retained by Timothy in the change-of-custody proceeding,
Timothy had consulted with, received legal advice from, and provided confidential
information to May concerning the custody proceeding. From that order, Sharon filed a
timely notice of appeal.
In matters involving the disqualification of attorneys, this court has jurisdiction
pursuant to Ark. R. App. P. – Civil 2(a)(8)(2006). Additionally, this case presents significant
issues needing clarification and development of the law, as well as significant issues
concerning the construction of rules; therefore, jurisdiction is also proper pursuant to Ark.
Sup. Ct. R. 1-2(b)(5)&(6)(2006).
We review a trial court’s decision to disqualify an attorney under an abuse-ofdiscretion standard. Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229 (2000). An abuse of
discretion may arise by an erroneous interpretation of the law. Seeco, Inc. v. Hales, 334 Ark.
134, 969 S.W.2d 193 (1998).
The Arkansas Rules of Professional Conduct are material in disqualification
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proceedings. Berry v. Saline County Memorial Hosp., 322 Ark. 182, 907 S.W.2d 736 (1995).
As this case involves the interpretation of the rules of professional conduct, our standard of
review is to read the rules as they are written, and interpret them in accordance with
established principles of rule construction. See Smith v. Sidney Moncrief Pontiac, Buick,
GMC Co., 353 Ark. 701, 120 S.W.3d 525 (2003). It is our responsibility to decide what a
rule means, and we will review the circuit court’s construction de novo. Id. We are not
bound by the circuit court’s decision; however, in the absence of a showing that the court
erred in its interpretation of the rule, that interpretation will be accepted as correct on appeal.
Id. Language of a rule that is plain and not ambiguous must be given its obvious and plain
meaning. Id. Neither rules of construction nor rules of interpretation may be used to defeat
the clear and certain meaning of a rule provision. Id.
Furthermore, in reviewing the circuit court’s factual findings, we must determine
whether the judge’s findings were clearly erroneous or clearly against the preponderance of
the evidence; a finding is clearly erroneous when, although there is evidence to support it,
the reviewing court on the entire evidence is left with a firm conviction that a mistake has
been committed. Chavers v. Epsco, Inc., 352 Ark. 65, 98 S.W.3d 421 (2003).
For her sole point on appeal, Sharon asserts that the circuit court erred when it applied
Rule 1.9 of the Arkansas Rules of Professional Conduct to disqualify Tripcony and his law
firm. She claims that disqualification of her attorney is not warranted under Ark. R. Prof’l
Conduct 1.18. As support for that claim, she asserts that the Tripcony Law Firm received no
information that could be “significantly harmful” to her former husband.
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Recently, we adopted the revised Arkansas Rules of Professional Conduct. See In Re:
Arkansas Bar Association - Petition to Revise the Arkansas Rules of Professional Conduct,
No. 03-1049 (May 1, 2005). The revised rules contain Rule 1.18, which specifies the duties
to a prospective client. Rule 1.18 provides as follows:
(a) A person who discusses with a lawyer the possibility of forming a clientlawyer relationship with respect to a matter is a prospective client.
(b) Even when no client-lawyer relationship ensues, a lawyer who has had
discussions with a prospective client shall not use or reveal information
learned in the consultation, except as Rule 1.9 would permit with respect to
information of a former client.
(c) A lawyer subject to paragraph (b) shall not represent a client with interests
materially adverse to those of a prospective client in the same or a substantially
related matter if the lawyer received information from the prospective client
that could be significantly harmful to that person in the matter, except as
provided in paragraph (d). If a lawyer is disqualified from representation
under this paragraph, no lawyer in a firm with which that lawyer is associated
may knowingly undertake or continue representation in such a matter, except
as provided in paragraph (d).
(d) When the lawyer has received disqualifying information as defined in
paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed
consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid
exposure to more disqualifying information than was reasonably necessary to
determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the
matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
Rule 1.9, which deals with duties to former clients, states in pertinent part:
(c) A lawyer who has formerly represented a client in a matter or whose
present or former firm has formerly represented a client in a matter shall not
thereafter: (1) use information relating to the representation to the
disadvantage of the former client except as these Rules would permit or
require with respect to a client, or when the information has become generally
known; or (2) reveal information relating to the representation except as these
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Rules would permit or require with respect to a client.
In her brief, Sharon points out that Timothy cited the cases of Gipson v. Brown, 288
Ark. 422, 706 S.W.2d 369 (1986), and Martindale v. Richmond, 301 Ark. 167, 782 S.W.2d
582 (1990), as well as Rules 1.7 and 1.9 of the Arkansas Rules of Professional Conduct, in
support of his motion to disqualify the Tripcony Law Firm. She correctly notes that both
cases were decided prior to the adoption of Rule 1.18 and that neither case involved
prospective clients. Nonetheless, the cited cases merit consideration in our analysis of the
instant matter, especially in view of the specific reference to Rule 1.9 in Rule 1.18(b).
In Gipson v. Brown, supra, we held that an attorney’s previous representation of
church elders gave rise to the presumption that confidential disclosures made by them in an
earlier matter might be used to their detriment in the current action. We reasoned that if the
earlier matter is substantially related to the current action, a presumption arises that
confidences of the former client were disclosed to the former attorney. Gipson v. Brown, 288
Ark. 422, 706 S.W.2d 369. Moreover, the court will entertain the presumption and will not
inquire into the nature and extent of the confidences; the confidential disclosures, whether
actual or presumed, command the disqualification of the attorney when he or she represents
an adverse interest in a related matter. Id.
We addressed a similar situation in Martindale v. Richmond, supra, where the attorney
representing the former wife in a child-support proceeding had represented his client’s
former husband five years earlier. In Martindale, the attorney claimed that he did not learn
about his prior representation of the former husband until five minutes before the scheduled
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hearing and that such late notice was merely a tactic to force settlement or a delay of the
hearing. 301 Ark. 167, 782 S.W.2d 582. The Martindale court reaffirmed the appearance
of impropriety as the governing standard in matters involving disqualification:
Here, there is no evidence that [the attorney] actually intended to damage [the
former husband’s] defense in the present support proceeding with information
or confidences he had previously acquired from [him] during their
attorney/client relationship. Nevertheless, the appearance exists that such an
abuse could occur and for that reason, [the lawyer] should have declined to
represent [the former wife] when he learned that he had represented [the
former husband] earlier.
301 Ark. 167, 170, 782 S.W.2d 582, 584.
We further noted that disqualification from subsequent representation is for the client’s
protection and can only be waived by the client. Martindale v. Richmond, supra. Indeed,
Rule 1.9 specifically states that an attorney who has a conflict of interest cannot represent the
adverse party unless the attorney consults with and obtains consent from the former client.
Ark. R. Prof’l Conduct 1.9(a)(2006).
Here, Sharon asserts that Rule 1.18 was adopted in 2005 to give guidance to attorneys
in their duties owed to prospective clients, as opposed to Rule 1.9, which deals with former
clients. Specifically, she relies upon Rule 1.18(c), which bars an attorney from representing
a client with adverse interests to those of a prospective client in a substantially related matter
if the attorney “received information from the prospective client that could be significantly
harmful to that person in the matter.” Sharon suggests that the circuit court erred in applying
Rule 1.9 because its decision was based on an assumption that Heather May received
information from Timothy that would be harmful to him in the instant matter. According to
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Sharon, there is no evidence that the Tripcony Law Firm received information from Timothy
that could be significantly harmful to him. For that reason, she contends the law firm should
not be disqualified from representing her. As further support for her position, Sharon cites
Comment 1 to Ark. R. Prof’l Conduct 1.18, which states, “A lawyer’s discussions with a
prospective client usually are limited in time and depth and leave both the prospective client
and the lawyer free (and sometimes required) to proceed no further. Hence, prospective
clients should receive some but not all of the protection afforded clients.”
In applying the provisions of Rule 1.18 to the facts of this case, it is undisputed that
Timothy was a prospective client under the terms of Rule 1.18(a) when he consulted with
Heather May of the Tripcony Law Firm. Moreover, as a result of that communication, May
was prohibited from using or revealing information learned in her meeting with Timothy,
“except as Rule 1.9 would permit with respect to information of a former client.” Ark. R.
Prof’l Conduct 1.18(b)(2006). Thus, the duty May owed to Timothy as a prospective client
under Rule 1.18(b) would be coextensive with the duty an attorney owes to a former client
under Rule 1.9(c). Furthermore, the duty to a prospective client exists regardless of how brief
the initial conference may have been and regardless of the fact that no client-attorney
relationship ensued. Comment 3 to Ark. R. Prof’l Conduct 1.18 (2006).
As a lawyer subject to the provisions of Rule 1.18(b), May would also be prohibited
from representing a client with interests materially adverse to those of her prospective client,
Timothy, in the same or a substantially related matter if she received information from
Timothy “that could be significantly harmful to [him] in the matter.” Ark. R. Prof’l Conduct
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1.18(c)(2006). The circuit court correctly concluded that Timothy was a prospective client
of the Tripcony Law Firm and that the current action is the same custody proceeding for
which Timothy consulted May of the Tripcony Law Firm. Likewise, Sharon does not contest
the fact that her interests are materially adverse to those of her former husband, Timothy.
Sharon does, however, contest the circuit court’s finding that due to the nature of a
change of custody proceeding, “detrimental or harmful information would have been
obtained or gleaned from [his] conference with Ms. May.” She relies upon the following
colloquy between Timothy and Sharon’s attorney:
T RIPCONY: Do you have any correspondence from Ms. May or anyone else in my firm
that would contain any information that you believe would be harmful to your case
today?
T IMOTHY: No, Sir.
T RIPCONY: Are you saying that you told Ms. May things that would be harmful to
your case?
T IMOTHY: No - no, sir.
As further support, Sharon reiterates that the contents of Timothy’s journal were disclosed
in the earlier litigation between the parties.
Viewing the evidence in the light most favorable to the appellee, as our appellate
standard of review requires when a lower court’s findings of fact are challenged on appeal,
we cannot say that the circuit court clearly erred in finding that harmful information would
have been forthcoming during Timothy’s conference with Heather May of the Tripcony Law
Firm about this change-of-custody proceeding. As stated earlier, Timothy testified that in
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addition to giving May a copy of his journal, he also told her about facts that were not in the
journal, and he disclosed everything he knew and his concerns about the children and his
former wife. According to Timothy, he acted upon advice received from May during the
consultation with her. As to whether May received information that “could be significantly
harmful” to Timothy, we agree with the circuit court that a lawyer who consults with a
prospective client about a change-of-custody proceeding will necessarily become privy to
information that could be used to the disadvantage of that person in the same proceeding.
Similarly, the circuit court could reasonably conclude that a prospective client would not
know whether the information disclosed during the consultation “could be significantly
harmful.”
In our holding, we do not deviate from the principle that a litigant, of course, is
entitled to an attorney of his or her choosing. Saline Memorial Hosp. v. Berry, 321 Ark. 588,
906 S.W.2d 297 (1995). In the absence of an ethical violation, disqualification can be
warranted; it is an available remedy to a trial court “to protect and preserve the integrity of
the attorney-client relationship.” Craig v. Carrigo, 340 Ark. 624, 12 S.W.3d 229
(2000)(quoting Burnette v. Morgan, 303 Ark. 150, 794 S.W.2d 145 (1990)). However, it is
a drastic measure to be imposed only where the circumstances clearly require it. Id. The
principle is not absolute and must be balanced against other considerations such as the issue
we have before us today. Seeco, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998).
Based on our review of the record, we conclude that the circuit court’s findings of fact
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were not clearly erroneous or clearly against the preponderance of the evidence; nor did the
circuit court abuse its discretion in disqualifying Tripcony and his law firm from representing
Sharon in the custody proceeding.1
Affirmed.
1
It is undisputed that May’s disqualification would also extend to the other lawyers in the
Tripcony Law Firm. Ark. R. Prof’l Conduct 1.18(c).
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