Conflicted Waiver

By: Mike Gora

Q:   Five years ago I lost my job in construction because of the downturn in the economy and my wife was out of work.  We got behind in our mortgage payments and, after a year the bank foreclosed.  We found a lawyer, who agreed to represent us.  The deal was that for every month he kept us in our home he was paid an amount about 25 percent of our monthly payment.  We stayed in our house an added two years.

Last month my wife and I decided to divorce.  I went to the same firm because they had done a good job for me, and had a divorce specialist.  The lawyer explained that because the firm had represented me and my wife there would be a technical conflict of interest for him to represent me against the wife unless she signed a “waiver of conflict.”

The lawyer drafted a one page document which I took home.  We went to our bank and she signed the waiver in front of the bank’s notary.  I took the paper to the lawyer and paid a retainer.  We had a long meeting, went over all of the facts, and I signed a retainer agreement calling for a minimum fee which I paid.

The next day the wife went to a different lawyer who sent my lawyer a letter stating that the wife had withdrawn her waiver and wanted me to get a new attorney.  I want to keep the lawyer that I hired.  To my mind there was no real conflict of interest as the house that we had was finally foreclosed.  My wife never even met the foreclosure lawyer and did not participate in the foreclosure in any way.

I never shared any information about the other assets and liabilities my wife and I had at the time of the foreclosure.  There was no information given about our incomes as we had none for most of the time the foreclosure case was opened.

Opposing counsel stated that my wife did not understand the waiver document, but she has a college degree and the one page document clearly explained that she had the right to reject the waiver and not sign it.  Do you believe that my attorney will be removed as my lawyer?

A:  Under all of the circumstances it does not appear that a court would interfere with your right to hire the lawyer of your choice after your wife signed a waiver.  There are some specific types of contracts which people sign but retain the right to cancel the contract within a period of time.  There is no such statute governing this situation.  Based upon the waiver, you hired a lawyer and disclosed confidential information about your relationship with your wife.

There seems to be no actual conflict of interest because of your wife’s remote connection to the foreclosure case.  She never gave any information to the law firm, and was only a nominal defendant.  It does not appear the kind of a case where the family court judge would disallow your chosen representation.

Michael H. Gora has been certified by the Board of Specialization of the Florida Bar as a specialist in family and matrimonial law and is a partner with Shapiro Blasi Wasserman & Gora P.A. in Boca Raton.

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About Pedro Heizer

I'm a person of simple taste, all I need is some country music, Batman, Star Wars, sports, coffee, and most importantly Jesus Christ, because what profits a man if he gains the whole world and loses his soul? View all posts by Pedro Heizer

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