Spinneweber, M. v. Cunningham, T. ( 2023 )


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  • J-A06010-23
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
    MICHAEL SPINNEWEBER                          :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    TRACY A. CUNNINGHAM                          :
    :
    Appellant               :   No. 790 WDA 2022
    Appeal from the Order Entered June 2, 2022
    In the Court of Common Pleas of Butler County Civil Division at No(s):
    21-90181-D
    BEFORE:       OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
    MEMORANDUM BY OLSON, J.:                           FILED: August 22, 2023
    Appellant, Tracy A. Cunningham (“Wife”), appeals from the June 2, 2022
    order denying her amended motion to disqualify counsel for Michael
    Spinneweber (“Husband”). We affirm.
    Husband and Wife were married on October 15, 2001. On March 25,
    2021, Husband filed a complaint for divorce in Butler County Court of Common
    Pleas.     At that time, Husband was represented by Robert W. Galbraith,
    Esquire. On March 18, 2022, Husband changed counsel and retained Jill D.
    Sinatra, Esquire (“Attorney Sinatra”) and the firm Gilliland, Vanasdale, and
    Sinatra Law Office, LLC (“GVS Law”).
    ____________________________________________
    * Retired Senior Judge assigned to the Superior Court.
    J-A06010-23
    On April 27, 2022, Wife filed the instant motion, seeking to disqualify
    Attorney Sinatra and GVS Law.1 In her motion, Wife alleged that Attorney
    Sinatra and GVS Law “ha[d] a direct conflict of interest” because, in August
    2013, Husband and Wife met with Attorney Sinatra regarding litigation
    involving Husband’s business, MLG Land Development (hereinafter, the “2013
    Consultation”).      Wife’s Amended Motion, 4/27/22, at *1 (unpaginated).
    During the 2013 Consultation, Wife claimed the parties provided to Attorney
    Sinatra “detailed information concerning their business operations, their roles
    within their business operations” and “plans for addressing not only [a]
    pending litigation[ matter,] but also other ongoing business matters.” Id. In
    addition, Wife alleged that, in July 2014, when Attorney Sinatra was
    associated with Lisa Marie Vari & Associates, Wife consulted with Attorney
    Sinatra   about     potentially    divorcing   Husband   (hereinafter,   the   “2014
    Consultation”). Id. at *2. During the 2014 Consultation, Wife alleged that
    she “provided detailed and privileged information concerning the parties’
    marriage, business assets and income.” Id.
    Husband filed a response to Wife’s motion the same day.             Initially,
    Husband argued the 2013 Consultation never occurred, pointing to the lack of
    evidence and to the fact that, in 2013, Attorney Sinatra was a solo
    ____________________________________________
    1 On March 31, 2022, Wife filed a motion seeking to disqualify Attorney
    Sinatra. Wife later withdrew her motion. Then, on April 21, 2022, Gary T.
    Vanasdale, Esquire, and Jen GV Gilliland Vanasdale, Esquire, of GVS Law
    entered their appearances on Husband’s behalf. See Praecipe for Appearance,
    4/21/22, at 1.
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    J-A06010-23
    practitioner, focusing exclusively on criminal defense and family law, not civil
    litigation.   Husband’s Response, 4/27/22, at *2 (unpaginated).       Husband,
    however, admitted that, at the alleged time of the 2014 Consultation, Attorney
    Sinatra worked at Lisa Marie Vari & Associates and that, upon investigation,
    records of the 2014 Consultation existed.        Id. at *5.   Attorney Sinatra
    nonetheless claimed that she did not recall the 2014 Consultation and that
    she possessed no records relevant to the matter. Id.
    On May 3, 2022, the trial court conducted a hearing on Wife’s motion,
    during which Lisa Vari and Wife testified.2 At the outset of the hearing, the
    parties stipulated that Attorney Sinatra did, in fact, work at Lisa Vari
    & Associates in 2014. Attorney Vari testified that her records indicated Wife
    “was sent a fee agreement,” but she “did not have any notes of a consultation
    on hand” or “any documents that [Wife] may have submitted.” N.T. Hearing,
    5/3/22, at 10-11. Attorney Vari explained it was her policy to discard any
    information or documentation obtained from a consultation if, within two years
    of a consultation, a person did not sign a fee agreement and, as such, retain
    her firms’ services. Id. at 11. Attorney Vari also explained that, in 2014,
    Attorney Sinatra was the “main person” conducting divorce consultations and
    she did not employ any other female associates resembling Attorney Sinatra
    during the relevant time. Id. at 12. Attorney Vari admitted, however, that
    ____________________________________________
    2 Jaloyn Fockler also testified.N.T. Hearing, 5/3/22, at 46-48. Her testimony
    did not pertain to either the 2013 or the 2014 Consultation. Id.
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    she did not know, for certain, who conducted the 2014 Consultation, its
    duration, or what information was conveyed. Id. at 23-24.
    Thereafter, Wife testified.        At the outset, Wife admitted the 2013
    Consultation did not occur, but “was very certain” that Attorney Sinatra
    participated in the 2014 Consultation. Id. at 25-26 and 31. Wife testified
    that she “kept all of [the] copies of . . . the information [she] provided” to
    Attorney Sinatra during the 2014 Consultation, as well as the fee agreement
    from Lisa Marie Vari & Associates, and a business card with Attorney Sinatra’s
    name handwritten on it.3 Id. at 26. Wife also described the documents and
    information she brought to the 2014 Consultation as follows:
    copies of three years of tax returns, both personal and business,
    . . . some bank statements, some credit card statements, pay
    stubs, information pertaining to investment accounts, some
    copies of some property deeds, as well as . . . [a] summary of
    all assets and liabilities. … And some balance sheets from the
    business [and] . . . a list of questions.
    Id. at 29.     Wife, however, stipulated that “many of the records provided
    [during the 2014 Consultation] were not confidential” because they related to
    accounts or properties held jointly with Husband. Id. at 35. Nonetheless,
    Wife claimed she disclosed “intimate details about [her] relationship with
    [Husband]” and conveyed concerns about the parties’ business during the
    consultation. Id. at 31. Ultimately, Wife admitted she did not retain Lisa
    ____________________________________________
    3 Wife stated that Attorney Sinatra wrote her name on the business card
    because “she just joined with the firm not that long ago and she did [not]
    have her own business cards yet at that time.” N.T. Hearing, 5/3/22, at 28.
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    Marie Vari & Associates to represent her in divorce proceedings. Id. at 31 and
    38. Thereafter, on June 1, 2022, the trial court denied Wife’s motion. This
    timely appeal followed.
    Wife raises the following issues on appeal:
    [Whether the trial court abused its discretion or committed an
    error of law in denying Wife’s motion to disqualify Attorney
    Sinatra and GVS Law?]
    Wife’s Brief at 3-4.4
    ____________________________________________
    4 Wife’s Statement of the Questions Involved on appeal is, as follows:
    1. Did Wife’s [] divorce consultation with [Attorney] Sinatra
    constitute an attorney-client relationship affording Wife
    privileges and protections when both Wife and [Attorney]
    Sinatra’s former employer provided uncontroverted
    testimony and evidence that the consultation was extensive,
    that confidential information and documents information
    contrary to Wife’s interests were provided to [Attorney]
    Sinatra during the meeting, and when [Attorney] Sinatra’s
    former employer testified that as per the practice of her firm
    during the time of the consult and [at the time of Attorney
    Sinatra’s employment], the consultation was conducted so
    as to include privileged information and therefore created a
    conflict of interest between [Wife and Attorney] Sinatra’s
    former employer as well as [Attorney] Sinatra individually?
    2. Did the Court [of Common Pleas of Butler County] commit
    an abuse of discretion or error of law in denying Wife’s []
    motion to disqualify [Attorney] Sinatra and GVS [Law] when
    Wife provided uncontroverted testimony and corroborating
    evidence that she had consulted with [Attorney] Sinatra,
    testified that the nature of the information provided to
    [Attorney] Sinatra at the meeting would be harmful to Wife
    should Husband [] or his representatives gain access, [Wife]
    believed that she was subject to a privilege when she spoke
    with [Attorney] Sinatra, [Attorney] Sinatra was not screened
    from the matter by GVS and in fact [Attorney] Sinatra
    (Footnote Continued Next Page)
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    This Court previously stated:
    [A]n order denying a motion to disqualify a law firm based on
    conflict of interest is immediately appealable as a collateral
    order. Dougherty v. Phila. Newspapers, LLC, 
    85 A.3d 1082
    ,
    1086 (Pa. Super. 2014); see also Pa.R.A.P. 313 (governing
    collateral orders).
    Furthermore:
    When reviewing a trial court's order on disqualification of
    counsel, we employ a plenary standard of review. Courts
    may disqualify attorneys for violating ethical rules. On the
    other hand, courts should not lightly interfere with the right
    to counsel of one's choice.         Thus, disqualification is
    appropriate only when both another remedy for the
    violation is not available and it is essential to ensure that
    ____________________________________________
    litigated preliminary issues [in the divorce proceeding
    between Husband and Wife] and when [H]usband presented
    no evidence whatsoever to contradict Wife’s evidence
    contrary to that provided by Wife?
    Wife’s Brief at 3-4. Undoubtedly, Wife’s Statement of Questions Involved
    utterly fails to comport with Pa.R.A.P. 2116’s requirements as it is anything
    but concise. See Pa.R.A.P. 2116(a) (“The statement of the questions involved
    must state concisely the issues to be resolved, expressed in terms and
    circumstances but without unnecessary detail”); see also 
    id.
     at cmt.
    (explaining that, while “the page limit for the statement of questions involved”
    was eliminated, “verbosity continues to be discouraged. The appellate courts
    strongly disfavor a statement that is not concise”). Moreover, Wife’s brief is
    not divided into sections corresponding to each of her questions presented, in
    violation of Pa.R.A.P. 2119 (“The argument shall be divided into as many parts
    as there are questions to be argued”). In fact, Wife recognizes that, while she
    set forth two separate issues, they are “inextricably intertwined” and elects to
    “address [both issues] together.” Wife’s Brief at 20. It is within this Cour’s
    power to quash an appeal for clear violation of our appellate rules. See
    Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity, 
    32 A.3d 800
    , 804 n.6 (Pa. Super. 2011) (en banc), aff'd, 
    91 A.3d 680
     (Pa. 2014)
    (citations omitted). While we caution against the failure to abide by our
    appellate rules, we conclude that Wife’s brief is not so defective as to hamper
    our review. See 
    id.
     We will therefore consider Wife’ claims on the merits.
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    the party seeking disqualification receives the fair trial that
    due process requires.
    E.R. v. J.N.B., 
    129 A.3d 521
    , 526 (Pa. Super. 2015) (citation
    omitted).
    Rudalavage v. PPL Elec. Utils. Corp., 
    268 A.3d 470
    , 478 (Pa. Super. 2022)
    (footnoted omitted). The party seeking disqualification bears the burden of
    proof. See Doughtery, 85 A.3d at 1087 (explaining that “a former client
    seeking to disqualify a law firm representing an adverse party on the basis of
    its past relationship with a member of the law firm has the burden of [proof]”).
    To warrant disqualification, the party must “make a clear showing that
    continued representation would be impermissible.” Wise v. U.S. Healthcare,
    
    1996 WL 908697
     *1, *3 (Pa. C.P. Bucks Cnty. Jan. 19, 1996), citing
    Commercial Credit Business Loans Inc. v. Martin, 590 F.Supp 328, 335
    (E.D. Pa. 1984); see also Tiversa Holding Corp. v. LabMD, Inc., 
    2013 WL 6796538
     *1, *2 (W.D. Pa. Dec. 20, 2013) (applying Pennsylvania law) (“Clear
    evidence must be provided by the moving party to establish that ongoing
    representation is impermissible.”).5
    ____________________________________________
    5  Our research has revealed that while Pennsylvania courts have not
    addressed the precise issues raised in this matter, federal courts have applied
    Pennsylvania law in this situation. See Miller v. Se. Pennsylvania Transp.
    Auth., 
    103 A.3d 1225
    , 1231 (Pa. 2014) (“As we have noted in the past, while
    [the Pennsylvania Supreme] Court is not bound by decisions of the federal
    Courts of Appeals, we may, and at times do, look to them for guidance.”).
    -7-
    J-A06010-23
    Pennsylvania Rule of Professional Conduct 1.9 governs the relationship
    between an attorney and former client.        It provides, in pertinent part, as
    follows:
    (a) A lawyer who has formerly represented a client in a matter
    shall not thereafter represent another person in the same or a
    substantially related matter in which that person's interests are
    materially adverse to the interests of the former client unless
    the former client gives informed consent.
    Pa.R.P.C. 1.9(a).   Pennsylvania Rule of Professional Conduct 1.18, on the
    other hand, outlines the duties owed to a prospective client. It states:
    (a) A person who consults with a lawyer about the possibility of
    forming a client-lawyer relationship with respect to a matter is
    a prospective client.
    (b) Even when no client-lawyer relationship ensues, a lawyer
    who has learned information from a prospective client shall not
    use or reveal information which may be significantly harmful to
    that person except as Rule 1.9 would permit with respect to
    information of a former client.
    (c) A lawyer subject to paragraph (b) shall not represent a client
    with interests materially adverse to those of a prospective client
    in the same or a substantially related matter if the lawyer
    learned information from the prospective client that could be
    significantly harmful to that person in the matter, except as
    provided in paragraph (d). If a lawyer is disqualified from
    representation under this paragraph, no lawyer in a firm with
    which that lawyer is associated may knowingly undertake or
    continue representation in such a matter, except as provided in
    paragraph (d).
    (d) When a lawyer has learned information as defined in
    paragraph (c), representation is permissible if:
    (1) both the affected client and the prospective client have
    given informed consent, or;
    (2) all of the following apply:
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    J-A06010-23
    (i) the disqualified lawyer took reasonable measures
    to avoid exposure to more disqualifying information
    than was reasonably necessary to determine
    whether to represent the prospective client;
    (ii) the disqualified lawyer is screened from any
    participation in the matter and is apportioned no part
    of the fee therefrom; and
    (iii) written notice   is   promptly   given   to   the
    prospective client.
    Pa.R.P.C. 1.18.
    Herein, Wife argues an attorney-client relationship was formed between
    her and Attorney Sinatra following the 2014 Consultation.         Wife’s Brief at
    23-25. As such, Wife claims that the matter is governed by Rule 1.9 of the
    Rules of Professional Conduct and requests this Court to follow the analysis
    and reasoning set forth in Dougherty, supra.          Id. at 20-23.    Husband,
    however, argues that, even if Attorney Sinatra conducted the 2014
    Consultation, which he disputes, Rule 1.18 of the Rules of Professional
    Conduct applies.    Husband’s Brief at 11-13.      Upon review, we agree with
    Husband.
    The evidence adduced during the May 3, 2022, hearing revealed that,
    while Wife consulted with an attorney at Lisa Marie Vari & Associates, there
    was neither follow-up nor further action between Wife and the law firm.
    Importantly, the fee agreement provided to Wife following the 2014
    Consultation read, in relevant part, as follows:
    Work on your case will not begin, and you should not consider
    this office as being retained by you as your legal counsel, until
    payment of the above-stated fees and this agreement is
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    J-A06010-23
    received by our office. Upon receipt of the signed agreement
    and payment, a staff member will promptly contact you to
    schedule any necessary appointments or to obtain additional
    information. We look forward to serving your legal needs.
    Wife’s Amended Petition, 4/27/22, at Exhibit B. Wife never signed the fee
    agreement or otherwise retained Lisa Marie Vari & Associates to represent her.
    N.T. Hearing, 5/3/22, at 31 and 38. Hence, even if Attorney Sinatra conducted
    the 2014 Consultation, no attorney-client relationship was formed and, as
    such, Rule 1.18 dictates our mode of analysis.            See Danielsen v.
    Pennsylvania College of Technology, 
    2014 WL 5088226
     *1, *2 (M.D. Pa.
    2014) (applying Pennsylvania law) (holding that the matter was governed by
    Rule 1.18 because the evidence demonstrated that the plaintiff “merely
    consulted with an attorney at the McCormick Law Firm on only one occasion
    on November 21, 2022 and there was no further interaction between [the
    p]laintiff and the law firm” and, as such, it was “clear to [the c]ourt that no
    lawyer-client relationship was ever formed.”).
    As stated above, Rule 1.18 provides protection to prospective clients.
    In particular, Rule 1.18(c) prohibits an attorney from engaging a client with
    material adverse interests to that of a prospective client in the same or
    substantially related matter if, during the consultation, the attorney learned
    “significantly harmful” information.    Pa.R.P.C. 1.18(c).    If Rule 1.18(c)
    disqualifies an attorney, however, his or her firm may continue representation
    if the firm complies with Rule 1.18(d). See 
    id.
     at (d).
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    J-A06010-23
    In this instance, Wife argues the “subject matter” of the 2014
    Consultation and the instant proceedings is “not just ‘substantially related,’ it
    is identical.” Wife’s Brief at 26. In addition, Wife claims that she “provided
    confidential information to counsel concerning a divorce from [Husband],”
    “documentation including, inter alia, an asset list that contained ‘personal
    notes and thoughts,’” and “prepared a list of questions to discuss at the
    consultation.” 
    Id.
     Accordingly, Wife asserts disqualification is warranted.
    Upon review, we conclude that, while Wife is correct in her assertion
    that the 2014 Consultation substantially relates to the instant matter, she
    failed to demonstrate that, if Attorney Sinatra participated in the 2014
    Consultation, she acquired information significantly harmful to Wife. Indeed,
    during the May 3, 2022 hearing, the parties stipulated that, during the 2014
    Consultation, Wife only produced documents pertaining to accounts and assets
    she shared jointly with Husband and, as such, none were confidential. See
    N.T. Hearing, 5/3/22, at 35. Hence, Wife’s sole basis for disqualification was
    her bald assertion that she disclosed “confidential information” during the
    2014 Consultation. Wife’s Brief at 26. Wife, however, failed to provide any
    evidence in support of this claim. In fact, while Wife acknowledged that the
    “[r]ules . . . require . . . a description of the type of confidential [information]”
    disclosed, Wife failed to provide such a description and, instead, simply
    testified that she “reveal[ed] . . . intimate details about [her] relationship with
    [H]usband.” 
    Id.
     at 31 and 35. Thus, the trial court found “that the testimony
    purporting to establish an attorney-client relationship [was] equivocal.” Trial
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    Court Opinion, 6/20/22, at 2. We similarly conclude that Wife’s “conclusory
    allegations, which [were] not backed by evidence, do not warrant the extreme
    remedy of attorney disqualification.” Jackson v. Rohn & Haas Co., 
    366 Fed. Appx. 342
    , 347 (3d Cir. 2010).
    Furthermore, Attorney Sinatra averred that she had “no memory of or
    records of the [2014 C]onsultation.”   Husband’s Response, 4/27/22, at *4
    (unpaginated).    Importantly, other courts have previously declined to
    “disqualify specific lawyers who represented parties with interest adverse to
    those of former potential clients when the specific lawyers had forgotten the
    substance of their discussions.” Tiversa Holding Corp., 
    2013 WL 6796538
    at *4 (applying Pennsylvania law) (declining to disqualify attorneys because
    they “never even met with, and had no knowledge of the details of prior
    meetings with [the defendants]”) (citation omitted); see also DOCA Co. v.
    Westinghouse Electric Co., L.L.C., 
    2012 WL 5877580
     *1, *4 (W.D. Pa.
    2012) (applying Pennsylvania law) (“Under these circumstances[,] we fail to
    see how Caldon could be significantly harmed as a result of the disclosure of
    the 1998 documents in September 2004 to an attorney who does not recollect
    the documents in a case that is awaiting the [c]o0urt’s resolution of motions
    for summary judgment.”). In light of the foregoing, we similarly conclude that
    Attorney Sinatra was not in possession of, or had access to, material that was
    - 12 -
    J-A06010-23
    significantly harmful to Wife and, as such, the trial court correctly denied
    Wife’s amended motion to disqualify counsel.6
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/22/2023
    ____________________________________________
    6 Because we concluded that the trial court correctly declined to disqualify
    Attorney Sinatra as Husband’s counsel, we need not address Wife’s contention
    regarding GVS Law.
    - 13 -
    

Document Info

Docket Number: 790 WDA 2022

Judges: Olson, J.

Filed Date: 8/22/2023

Precedential Status: Precedential

Modified Date: 8/22/2023