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Disqualification of an Attorney in an Arizona Divorce

Posted on : December 6, 2016, By:  Christopher Hildebrand
Disqualification of an Attorney in an Arizona Divorce

Disqualification of an Attorney in an Arizona Divorce

The Arizona Court of Appeals of Arizona received a Notice of Appeal filed by Mother in the unpublished case of Miller v. Miller. The appeal was regarding an order granting Father’s motion to disqualify Mother’s attorney, McCulloch, from further representation in the case.

A disqualification order is not appealable, but as Mother appears to have no other means of plain, speedy or adequate remedy by appeal, the court exercised its discretion to treat the appeal as a Special Action in order to accept jurisdiction.

Miller v. Miller: A Brief History of the Case

Disqualification of an Attorney in an Arizona Divorce.

Disqualification of an Attorney in an Arizona Divorce.

After the divorce of Miller v. Miller in 2009, Mother purchased a phone for the use of their child. When seeing a notification of a new email on the phone, Mother clicked on it and realized that the phone was set up to receive emails from Father’s personal email account. There was a dispute between the two parties regarding why Father was using the child’s phone to access his email.

Mother searched through approximately 3 months of emails in Father’s personal email account, forwarding several she felt could be relevant to ongoing litigation to herself and then deleting them so that Father would not know. Three days later, Mother showed the emails to her attorney, McCulloch.

Two days later, “McCullock” sent a letter to Father’s attorney bringing up Father’s use of the cell phone for his personal email and disclosing the emails Mother had forwarded to her. There was no response to the letter. Neither Father nor his attorney objected when Mother referenced emails in the December 2, 2013, hearing.

After the hearing was completed, Father filed a motion to disqualify McCulloch based on alleged ethical violations stemming from Mother’s viewing of Father’s private emails. McCulloch was found in violation of the Arizona Rules of Professional Conduct by the Superior Court and Father’s motion to disqualify was granted. Mother appealed.

While a disqualification order is not appealable, the Arizona Court of Appeals accepted jurisdiction by exercising its discretion to treat the appeal as a Special Action.

 

Miller v. Miller: Arguments on Appeal Treated as a Special Action

The Arizona Court of Appeals reviewed the ruling disqualifying Mother’s counsel for an abuse of discretion. Motions to disqualify are seen as a tactic that can be abused, should be viewed with suspicion and are, therefore, only to be granted in extreme circumstances. The party requesting the disqualification bears the burden of proof.

After consideration, the Arizona Court of Appeals found the superior court’s argument was flawed as is was working under the assumption that Father’s emails were privileged. One email was to the Parenting Coordinator assigned to the case. No information was shared that was not already known to both parties. This communication was not privileged.

The rest of the emails that were accessed by Mother were unsolicited emails to attorneys seeking representation. No information was exchanged that was not already known to both parties, there were no requests to keep information confidential, and the emails were sent to multiple attorneys.

None of the attorneys accepted Father as a client, therefore, no attorney-client relationship existed and the emails were not privileged. There is no indication Father showed proof that McCulloch’s actions or inactions prejudiced the case. Father’s parenting time was not decreased, Mother was not awarded attorney’s fees, and McCulloch’s notification of access to his email account resulted in Father changing his password to prevent future access.

The Arizona Court of Appeals: In Conclusion

The Superior Court’s order was based on the inaccurate conclusion that the emails were privileged. In addition, Father did not establish any prejudice stemming from McCulloch’s behavior. As such, the Court of Appeals of Arizona vacated the order to disqualify McCulloch and remand for reconsideration.

Jennifer, thank you for being my attorney. I could not have been more pleased with the outcome of my family court hearing. Everything you have done for me throughout this case reflects in the final ruling of the judge. You helped me keep my head together and taught me a lot about myself as a person. I learned so much about my life from observing and listening to you. I will take all the advice you gave me to continue taking responsibility for my choices, continue to put the kids' needs first, and always stay truthful. Your diligence, dedication, and persistence in my case made what seemed impossible, possible. You are a wonderful person and an amazing attorney and I am stronger and more confident because of you.
A Google User
A Google User
20:31 20 Sep 17
I just want to again thank the Firm for working with me all that it has. I could not have done anything without everyone's assistance. You, Chris and Stacey have been and continue to provide me with compassion and hard work towards my case. Also a very special thanks to Kip for taking my case in the beginning. Also continued support from him and his dedication to providing me with his expertise in this matter.
A Google User
A Google User
21:41 07 Nov 17
After interviewing several law firms, I came across Jennifer Shick, and her firm, who I hired to represent me for my Family Court case. Jennifer has extensive knowledge of the law and is determined to bring the truth to every issue involved within the case. Throughout my case, Jennifer was prepared meticulously as well as went above and beyond all of my expectations. Even when the other party tried to differ from the truth, lie to the Judge, and turn situations around, Jennifer remained attentive and provided substantial evidence to show the judge the facts as well as the proof to support what was the best interests of my children. Additionally, Jennifer helped me endure many difficult experiences, situations and inspired me to remain positive throughout the entirety of my case. Her kindness, compassion, and professionalism helped me through very difficult times and made the process feel a thousand times lighter on my shoulders. She truly has my children and my best interest at heart and I trust her perspective as well as her honesty on each and every aspect of my case. She lessened the burden on my shoulders and even when I felt like the case was not going to go in my favor, Jennifer was open-minded and reassured me that the Judge would, in fact, see the truth, which he did and the case went in my favor. After nine months of court, everything finally came together. I cannot declare how much Jennifer has been an outstanding attorney. She addressed each and every issue with diligence, she cares about her clients and their families. Jennifer genuinely cares about her clients and her dedication to the details of the case was remarkable. Overall, I am extremely pleased with Jennifer’s services and I am truly thankful that I was so blessed to have her represent my children and me. I highly recommend Jennifer as one of the best attorneys in Arizona and if the situation ever arises, I will definitely have her represent my children and me again.
Google User
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14:58 04 Oct 17
Dear Stacey and Kip, How can I ever thank you enough for helping me through the most difficult time in my life? I couldn't put into words my heartfelt gratefulness. You both were so compassionate and professional at every given moment throughout this process with me. I thank you from the bottom of my heart. You helped me to regain my freedom.
A Google User
A Google User
16:03 22 Nov 17
I was a client of Attorney Kevin Park for the dissolution of a divorce in 2016. And since I had never had the need to hire an attorney before for any purpose, I was somewhat apprehensive of the process. But the very calm and professional demeanor of Mr. Park eased my fears. He adeptly answered all my questions and I clearly knew the process and what to expect. And the skilled manner he communicated with opposing counsel was perfect. When it came down to negotiating with my spouse’s counsel, I knew I had selected the best attorney for my situation. What I noticed and appreciated was that he was using just the right amount of pressure with opposing counsel as was necessary. If you find yourself in this situation, you will want a seasoned professional like Mr. Park on your side. I'm very grateful that he was my attorney and not the opposition!
A Google User
A Google User
22:14 28 Jun 17
Chris is a smart and aggressive attorney for his clients. Chris always tries to reach a fair settlement of his cases. I’ve represented clients when Chris was the opposing counsel and while he is professional and amicable to work with, he does not back off on what he needs to do for his client
A Google User
A Google User
18:16 18 Sep 17
Kevin Park of Arizona Estate Planning Attorneys was just what I needed for my divorce. He was very approachable and personable. He was quick to recognize what I needed and provided it quickly and efficiently. I hope to never need a divorce lawyer again, but if I know anyone else who does, I will definitely recommend Kevin.
A Google User
A Google User
19:22 23 Aug 17
I feel that Tracey Van Wickler is certainly one of the best family lawyers around. She is logical, intelligent, and truly cares. Tracey always does what is in the clients best interest, does it well, timely and with integrity. She is good at keeping her clients informed as to what is going on and clear in her communication both written and verbally. I have recommended Tracey to other people and will continue to recommend her. I recommended Tracey to someone who was having issues with their ex-wife and his response was, “I know how good she is because I went up against her and she ate me for lunch”. This same person was so impressed with her, he even recommended her to someone else, WOW, that is impressive! I am exceptionally happy with her attention to detail, her ability to explain things in ways that are easy to understand, as well as her ability to keep everyone focused on the most important things. I would recommend Tracey to anyone who may be in need of her services.
A Google User
A Google User
17:44 23 Jun 16
I retained Hildebrand Law after interview a number of firms in the valley. Working with Michael C. was incredibly easy and informative. My case progressed in such a organized and thought out way to ensure that my needs were met. Michael was incredibly proactive and was able to see far ahead into my case to steer clear of some roadblocks. I would not hesitate to recommend Michael Clancy, and Hildebrand Law in general, to anyone.
Bassam Ziadeh
Bassam Ziadeh
21:20 02 Apr 18
I have worked with Hildebrand law for about 8 years. They are always ready to serve, provide guidance and give you a few options. When they provide you options they also take the time to walk you through the pros and cons of each and give you a recommendation of what is best, but will listen to you and support whatever course you choose after making and educated choice. I’d recommend them to my closest friends and feel Chris Hildebrand is now a friend to me.
Larry Flint
Larry Flint
21:53 27 Feb 18
Despite the unfortunate situation I found myself in, Chris Hildebrand @ Hildebrand Law helped me maneuver every step with professionalism, expertise, and even a sensitivity that was an added bonus.Chris and his staff helped me even when I didn't know I needed the help. In other words. . . they made sure we did not leave anything undone. And in the rare instance we needed the expertise of another professional, Chris knew exactly who to recommend.Chris also knew, because of his experience, what to anticipate down the road of litigation. That meant we were better prepared to meet the challenges head on, which lead to a more equitable and fair outcome. I appreciated that Chris did his best to meet my every need in a timely fashion, even if I had a simple question that required only a phone call or e-mail or if we needed to talk face-to-face.I highly recommend Chris Hildebrand @ Hildebrand Law, PC.
Sam Franchimone
Sam Franchimone
22:09 12 Sep 13

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