Kang v. Kang

Opinion

r: i ~ r::, f) IN THE SUPERIOR COURT ~<, t ! .- - !_~ ,,:~~ T OF GUAM 2 ''1 ! ,. r::-, 3 i" f l ' .J I JUNG YE KANG, ) Domestic Case no. DM 0675-09 4 ) ,~ ,- ~: :

12 This matter came before the Honorable Judge Michael J. Bordallo on February 16,

13 2012. The Plaintiff was represented by Attorney Leslie A. Travis. The Defendant was 14 represented by Attorney Peter C. Perez. After considering the matter presented, the 15 Court now issues the following decision and order granting Plaintiff's motion to disqualify 16 opposing counsel. 17

18 DISCUSSION

19 In 2005, the Plaintiff claims she met with attorneys at the law finn of Lujan, Aguigi, 20 and Perez, LLP ("Lujan Finn") to discuss filing for divorce. Plaintiff claims that she paid a 21 retainer deposit of five thousand dollars ($5,000.00) to the Lujan Finn for their services. 22 Thereafter, Plaintiff and Defendant reconciled and remained married until 2009, when Plaintiff 23

24 filed the instant action for divorce. On June 29, 2011, the Lujan Finn entered an appearance on

25 behalf of the Defendant. On December 23, 2011, the Plaintiff filed the present motion to 26 disqualify the Lujan Finn from representing the Defendant in this matter. 27 DISCUSSION 28 Plaintiff bases her present motion to disqualify on her assertion that she had previously Page I of3 hired the Lujan Finn to represent her in a substantially similar matter involving the Defendant. 2 Plaintiff argues that Rules 1.9 and 1.10 of the Guam Rules of Professional Conduct ("GRCP") 3 bar the Lujan Finn from representing the Defendant in the present action. Those rules provide 4 in relevant part: 5

6 Rule 1.9: Duties to Former Clients (a) A lawyer who, [sic] has fonnerly represented a client in a matter shall not 7 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 fonner 8 client unless the fonner client gives infonned consent, confinned in writing. 9 Rule 1.10: Imputation of Conflicts of Interest: General Rule. 10 (a) While lawyers are associated in a finn, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited II from doing so by Rules 1.7 or 1.9, unless the prohibition is based on a personal 12 interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the 13 finn. 14 Rule 1.9 sets forth three elements to establish an impennissible conflict of interest due to a 15 fonner representation: (l) a fonner representation of a client; (2) the present representation 16

17 involves a matter that is the same or substantially related to the subject of the prior

18 representation; and (3) the present representation is materially adverse to the interests of the

19 fonner client. 20 The Court finds that the Plaintiff is a fonner client of the Lujan Finn. In order to 21 establish an attorney-client relationship "the parties need not have executed a fonnal contract. 22 Nor is the existence of a relationship dependent upon the payment of fees." Cole v. Ruidoso 23

24 Mun. Sch., 43 F.3d 1373, 1384 (lOth Cir. 1994) (citations omitted). An attorney-client

25 relationship however did arise from the interactions between the Plaintiff and the Lujan Finn. 26 In 2004, the Plaintiff paid the Lujan finn a retainer fee of $5,000.00 for their services. She also 27 met with attorneys at the finn and had discussions with them regarding a divorce action against 28 the Defendant. Based on those facts, the Court finds that the Plaintiff and the Lujan finn had an Page 2 of3 attorney-client relationship. 2 The Court further finds that the Lujan finn's representation of the Defendant in the 3 present case is substantially related to the subject of their prior representation of the Plaintiff. In 4 the present case, the Plaintiff seeks a divorce from the Defendant, which is exactly the same 5

6 issue she sought legal advice about from the Lujan finn in 2004. Thus, the instant matter is the

7 same subject of the prior representation. Further, the Lujan finn's representation of the 8 Defendant in this case is materially adverse to the interests of their fonner client, the Plaintiff. 9 Pursuant to Rule 1.9, because this suit is materially adverse to the interests of the 10 Plaintiff, the Lujan firm should have obtained written consent from the Plaintiff to serve as II

12 legal counsel for Defendant in this case. Moreover, because such consent was not obtained

13 before the Lujan finn represented the Defendant in this case, the Court fmds that the Lujan firm 14 shall be disqualified from representing the Defendant in this case. 15 CONCLUSION 16 Based on the foregoing, the Court GRANTS Plaintiff's motion to disqualify the Lujan 17

18 firm from representing the Defendant in the instant case.

20 SO ORDERED, this ~ day of ~ 2012. 21

26 I co ;,ereby ...". t;y tIlat the foregoing

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