Top Nevada Court Says Attorney Son Can Represent Dad in Divorce From Mom
Posted Aug 13, 2012 2:55 PM CST
By Martha Neil
Family unity anyone? At a gut level, one might think it is a bad idea for a child who is a lawyer to represent a parent in a divorce case involving the other parent as the respondent, points out the Las Vegas Review-Journal.
However, it isn't a clear conflict of interest for an attorney to do so, absent specific issues that weren't shown in the divorce case in question, the Nevada Supreme Court has ruled. Hence it granted a writ of mandamus sought by the father, finding that a trial court abused its discretion by disqualifying Mark T. Liapis from representing his father, Theodore L. Liapis.
Nixing arguments by Marie Josephine Liapis that her son is a potential witness in the divorce and could eventually inherit from his parents' estate, the court said in a Thursday opinion (PDF) that these concerns were too tenuous and any appearance of impropriety is immaterial because it isn't at issue under applicable legal ethics rules.
In fact, the court found, the protesting parent didn't even have a right to seek to boot her legal eagle offspring from the case, because she "has not established that she shared a confidential or fiduciary relationship with Mark sufficient to give her standing to seek his disqualification."
No ethical rule prohibits a child from representing a parent, and anything that the mother may have told the son, seemingly in confidence, is not a "legally recognizable confidential relationship" unless a privileged or fiduciary relationship can be demonstrated, the opinion explains.
Thus, "absent an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney, the nonclient parent lacks standing to seek disqualification," the court holds.
Apparently agreeing with the father's argument that the mother relied on “boilerplate generalities” in seeking to disqualify her son as her husband's attorney, the court nonetheless did leave the mother a window of opportunity for future protest.
Although it found that "the district court manifestly abused its discretion when it disqualified Mark based on his status as a potential witness when the case had not yet reached the trial phase," it would seem that this could change when a trial looms.
Hat tip: Legal Profession Blog.