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In Re the Marriage of:

January 15, 2013


APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DR 09-841 Honorable Robert L. Deschamps, III, Presiding Judge

The opinion of the court was delivered by: Justice Beth Baker

Submitted on Briefs: September 12, 2012

Decided: January 15, 2013



Justice Beth Baker delivered the Opinion of the Court.

¶1 Appellant Karen Jane Perry (Karen) appeals the Fourth Judicial District Court's order denying her request to disqualify and enjoin attorney Gail H. Goheen (Goheen) from representing Appellee Terance Patrick Perry (Terance) in this proceeding. We affirm and address the following issues:

¶2 1. Did the District Court err by denying Karen's motion to disqualify Goheen as counsel for Terance pursuant to Rule 1.20 of the Montana Rules of Professional Conduct?

¶3 2. Did Goheen violate her duty to Karen under Rule 1.9 of the Montana Rules of Professional Conduct?

¶4 3. Did the District Court err by permitting Goheen to testify at the disqualification hearing?

¶5 4. Did the District Court err by relying on privileged communications between Goheen and Karen?

¶6 5. Was Karen denied due process when the District Court relied on documents and sworn testimony not subject to cross examination?

¶7 6. Did the District Court err by determining that Karen abused the rules of disqualification?


¶8 On December 4, 2009, Terance filed for dissolution of his marriage to Karen in Missoula County. Karen subsequently filed a dissolution proceeding in Massachusetts, which was dismissed for lack of subject matter jurisdiction. Terance is a partner of the law firm of Datsopoulos, MacDonald & Lind, P.C. in Missoula. Terance was represented by three different attorneys before filing a notice of withdrawal and substitution of counsel on January 24, 2011, naming himself as counsel of record. On February 25, 2011, Terance filed a subsequent substitution of counsel naming Goheen as his counsel of record.

¶9 In January 2008, before any dissolution proceedings were filed, Karen contacted Goheen's office in Hamilton seeking legal advice concerning the potential filing of a dissolution action. Karen spoke with Goheen's assistant, Kailah Van Note (Van Note), and later Goheen herself.

¶10 Karen filed a motion to disqualify Goheen and an application for a preliminary injunction on March 1, 2011. Terance opposed the motion and filed two office memorandums and affidavits from Goheen and Van Note regarding their telephone conversations with Karen. A disqualification hearing was held on November 7, 2011. Two days before the hearing, Karen filed a motion to strike the office memorandums and affidavits as privileged, asserting that the documents "included information which is harmful to [Karen]." The District Court took the motion under advisement, granted the parties' motion to seal the documents from public access, limited Goheen's testimony about the documents, and did not permit Karen to cross-examine Goheen about the documents.

¶11 At the hearing, Karen testified that she provided personal information about herself and Terance during one telephone conversation with Van Note and two telephone conversations with Goheen. Karen said the conversations with Goheen lasted 45 minutes and 3 minutes, respectively. She said that she gave information about the marriage, including domestic abuse*fn1 and finances, and that she asked for legal advice on her "position," which she described as: "[w]here I wanted to end up. If I could end up at a certain place. What would happen if I stayed here. What happen if I left here. Goals of settlement. My weaknesses and fears." Karen testified that she identified individuals who were present during domestic disputes. She said Goheen quoted her a "ridiculously enormous" retainer, but conceded that she was never sent a retainer agreement and that Goheen had "denied representation." Karen admitted awareness of some sort of conflict between Goheen and Datsopoulos, MacDonald & Lind. Karen testified that she thought the information she gave to Goheen's office would be confidential. When asked by her counsel why she believed she had an attorney-client confidential relationship with Goheen in 2008, Karen said "[b]ecause it was promised to me."

¶12 When asked "[h]ow does Gail Goheen's representation of your husband now, in this dissolution of marriage that he brought three years later, harm you," Karen responded:

[P]sychologically, it's like getting beat up again by him. It's like I can't trust anybody. There's nobody I can turn to. He took away everything and everybody I could trust. And now he's done it again with somebody who I confided in, who's now on the opposite side of the table. And it -- I -- I'm betrayed again. It's another form of abuse and control . . .

When asked "[i]s there anything in the communications [from Goheen], even within the brief of the attachments, that you feel have already harmed you," Karen responded, "Yeah . . . I've been called a liar. I've been discredited already."

¶13 Overruling Karen's objections that Goheen "can't testify to attorney-client communications and that she cannot be an advocate and material witness," the District Court permitted Goheen to offer testimony about the length of the telephone conversations, her office procedures, and background information established in the court file. Goheen testified without another attorney questioning her. Goheen admitted to having one conversation with Karen in January 2008, which she said lasted less than 12 minutes because the time entry information on the record was left blank and it is her office policy that time information is left blank when a conversation lasts 12 minutes or less. Goheen denied having a second conversation with Karen. Explaining her office procedures for new clients, Goheen stated:

Whenever I meet with a client, Your Honor, I don't do it over the phone, in the sense of getting information. I sit down and I meet with the client for a half a day, usually, is my first meeting with a client on a divorce action.

It's at that time that I go over everything I can think of, in terms of -- at least broadly, in terms of the scope of the case, what the assets may be, the liabilities may be, whether there are children, what the nature of the relationship is with the party. All details.

I'm not interested in it, information, in terms of any details prior to that time. And my policy is that I never give anybody a retainer ...

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