## Facts

- In January 2008, Karen Perry telephoned attorney Gail Goheen to talk about filing for divorce and spoke with Goheen’s assistant and then Goheen.
- Karen did not retain Goheen and instead hired different counsel; Karen later claimed she chose not to hire Goheen because the retainer quote was too high.
- Goheen testified the contact was a brief phone conversation, not an initial client meeting; she denied quoting a retainer and said she declined representation because she would not represent someone seeking to divorce a local divorce attorney (Terance Perry), and she referred Karen elsewhere.
- In 2009, Terance Perry filed a petition for dissolution of marriage. Terance (an attorney) retained multiple attorneys at different times and at one point represented himself.
- Terance later retained Goheen to represent him in the dissolution.
- During the dissolution proceeding, the parties filed materials describing their finances and personal lives; Karen also filed affidavits alleging spousal abuse.
- Karen moved to disqualify Goheen (and sought preliminary injunctive relief), arguing that Karen’s earlier communications with Goheen created an implied professional relationship and that ethics rules barred Goheen from representing Terance after consulting with Karen.
- Karen testified she disclosed personal information to Goheen, including alleged domestic abuse and her “weaknesses and fears,” and that she asked for legal advice about her position and options; she also testified that Goheen’s appearance for Terance felt psychologically like “getting beat up by him again” and “another form of abuse and control.”
- The district court denied the motion to disqualify, and Karen appealed.

## Issues

1. Whether the district court erred in refusing to disqualify attorney Gail Goheen from representing Terance Perry based on Karen Perry’s earlier consultation with Goheen about divorcing Terance.
2. Whether Karen established that Goheen received confidential information during the consultation that could be “significantly harmful” to Karen in the dissolution, so as to bar Goheen’s later adverse representation under the Montana Rules of Professional Conduct governing duties to prospective clients.

## Decision

- The Montana Supreme Court affirmed the district court’s order denying disqualification.
- The court treated Karen, at most, as a prospective client and held that prospective-client status alone does not automatically prevent a lawyer from later representing an opposing party in the same matter.
- The court concluded Karen did not make the required showing that Goheen received information during the brief contact that could be significantly harmful to Karen in the dissolution, particularly where much of the information Karen pointed to was also reflected in the parties’ later filings and affidavits.
- The court rejected disqualification based on Karen’s generalized claims of emotional harm and betrayal, holding that disqualification requires a showing tied to the rule’s protection of materially harmful confidences and the fairness of the proceeding.

## Legal Principles

- A person who consults a lawyer about possible representation, but does not retain the lawyer, may be treated as a prospective client; duties owed to a prospective client are narrower than duties owed to a current or former client.
- Under the prospective-client conflict rule (modeled on Rule 1.18), a lawyer is barred from representing an adverse party in the same or a substantially related matter only if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, absent informed consent.
- The party seeking disqualification bears the burden to identify information shared in the consultation and to show why it could be significantly harmful in the litigation; broad claims that “personal” matters were discussed are generally not enough.
- Where similar information has been disclosed in court filings or otherwise becomes part of the record, it is harder to show the lawyer possesses confidential information that would create a serious risk of unfairness.
- Disqualification is a severe remedy and is not ordered without a concrete showing that the rules’ standard is met; appellate courts generally defer to trial-court fact findings in resolving disputed accounts of the consultation.

## Conclusion

The Montana Supreme Court affirmed the denial of Karen Perry’s motion to disqualify Gail Goheen because Karen’s brief pre-suit contact with Goheen did not establish that Goheen received confidential information that could be significantly harmful to Karen in the dissolution, and Karen’s claimed emotional distress did not satisfy the ethics-rule standard for disqualification.


In re Marriage of Perry, 293 P.3d 170 (2013)