questions & answers

Question: My son-in-law sued for divorce from my daughter. Two kids are involved--16 and 11. His attorney (say Mr. X) has subpoenaed me to testify on his client's behalf. I do not want to testify. Q1. Does the fact that his attorney met with my wife and me c. 1 yr ago to discuss my daughter's issues as the relate to the kids disqualify him as having knowledge we gave in confidence to him? Q2. Does the same apply to my wife, my daughter's step mother? Q3. I have worked with both to provide a negotiated settlement, divulging information that may compromise her if I testify. Will this disqualify me?

Answer:

The following is intended as general information only and should not be construed as legal advice. Family law can be very complicated and to learn how the law applies to your specific situation, you may wish to consult an attorney directly.

When one meets with an attorney and shares confidential information, the attorney cannot later use that information against the client—it is a conflict of interest. To represent a client in a situation in which the attorney has a conflict of interest may be a violation of ethical rules. It is unclear whether this activity would constitute a violation: the attorney met with you and your wife and is now representing your son-in-law against your daughter—not against you.

 If you are concerned that the attorney’s behavior violates client confidentiality or otherwise constitutes a violation of ethical rules, you have the option of filing a complaint with the State Bar of Arizona. Disqualification for having confidential information generally only applies to parties who are bound to confidentiality. Attorneys are bound as well as any staff members who may have been present at the meeting. However, anyone else who was there and is not bound for ethical reasons, is not forced to keep information confidential. According to A.R.S 12-2201, “A person shall not be incompetent to testify because he is a party to an action or proceeding or interested in the issue tried.” This essentially means that being interested in the issue will not disqualify the witness from testifying.