A not uncommon tactic of matrimonial litigants is to consult with a number of prominent local attorneys with the express purpose of narrowing the availability of those attorneys to represent their spouses due to conflict of interest. This practice is called “attorney shopping” and is engaged in to prevent the other spouse from retaining a top divorce attorney or to narrow the availability of matrimonial attorneys to the other spouse.
The new Rules of Professional Conduct became effective in New York State on April 1, 2009. Rule 1.18(a), entitled “Duties to Prospective Clients”, states that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a ‘prospective client’”. Section (b) of this Rule states that “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”.
However, Rule 1.9 (e) states that “a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client…” Thus, the new rules provide protection to a party whose spouse has purposefully attempted to disqualify representation by an attorney.
