Virginia Lawyers Weekly VA Lawyers Weekly
A Reston lawyer has been sidelined from representing a husband in a contentious and complicated Loudoun County divorce action because of his prior representation of a former friend of the husband.
The husband accused the former friend of having an affair with the wife. The friend then claimed attorney Robert Lee Vaughn Jr. was using confidential information to suggest the friend was plotting with the wife against the husband.
Vaughn sought to take the friend’s deposition. The friend – through counsel – moved to disqualify Vaughn.
Loudoun County Circuit Judge Jeanette A. Irby said her disqualification order was no reflection on Vaughn’s actions or motives. She emphasized her concern was avoiding the appearance of a conflict.
Irby’s Oct. 22 opinion came in the case of Siraj v. Bhatti (VLW 020-8-120).
Deposition sought
Before Vaughn represented husband Norman Siraj in domestic matters, Vaughn began work on a divorce for Raheel Kahn, then a close friend of Siraj. Siraj attended meetings between Kahn and Vaughn, according to Irby’s account of the dispute.
Siraj’s legal difficulties began in April when wife Sehrish Bhatti accused him of battery and sought a protective order. When Siraj was arrested, he reportedly admitted the abuse to Kahn and asked Kahn to go to his house to find out what Bhatti was doing and saying.
As Kahn became more involved in the tangled domestic situation, Siraj claimed Kahn was having an affair with Bhatti. At that point, Vaughn began representing both Kahn, in his divorce, and Siraj in connection with the protective order and criminal charges.
Complications and additional charges ensued in the squabble involving the couple, Kahn and a sister of Siraj. A judge on May 20 allowed Vaughn to withdraw from representing Kahn.
Vaughn then sought to depose Kahn at least in part to discover whether Kahn committed adultery with Bhatti and whether the two schemed to bring protective order actions against Siraj.
Kahn hired attorney Phillip S. Gross of Fairfax, who sought Vaughn’s disqualification from his representation of Siraj. Irby heard arguments Oct. 21.
Confidences alleged
Kahn alleged two grounds for disqualification, Irby said. He contended Vaughn had revealed confidences in representing Siraj that violated Rule 1.6 of the Rules of Professional Conduct and Vaughn’s continued representation of Siraj violated Rules 1.7 and 1.9.
Kahn alleged that Vaughn was using confidential information to “spin a nefarious web” around him, accusing him of plots with Bhatti against Siraj. The confidences purportedly included information about Kahn’s finances, his marriage and his knowledge of the parties’ relationship.
Kahn produced a transcript of a general district court hearing in which Vaughn questioned Kahn about a Pennsylvania protective order. Irby said the wife’s counsel, Douglas E. Milman of Fairfax, agreed the questioning was “ethically troubling.”
“My concern, as was briefly stated at the hearing, was that the conflict between a former client and a current client was too significant be ignored,” Milman said Nov. 4.
Vaughn argued Siraj was in every meeting between Kahn and Vaughn, thereby destroying any privilege. He said no relevant confidences were disclosed because the two divorces were “entirely unrelated.” He said his questioning of Kahn in general district court was based, not on confidences disclosed by Kahn, but on information received from Siraj.
Arguing against disqualification, however, Vaughn faced the Virginia rule that, once an attorney-client relationship is established, an irrebuttable presumption arises that confidential information was conveyed, Irby said.
While the presence of a third party during attorney meetings can undermine the presumption of confidentiality, Irby said she was persuaded the Kahn-Vaughn meetings were confidential based on evidence that Siraj was there largely as an interpreter for Kahn.
Confidences in an attorney-client relationship “may be intangible and may include nuances such as Kahn’s values, his emotional state, whether he was lonely or bitter, etc.,” Irby said.
“All of those factors may support Husband’s allegations of an affair between Kahn and Wife. Such knowledge would place Attorney Vaughn in the difficult position of having to use that information to zealously represent Husband, while also being obligated to protect Kahn’s confidences,” Irby wrote.
“The Court does not take lightly Attorney Vaughn’s assertions, as an officer of the Court, that he has not relied on any such confidences, but the Court must also consider the appearance of impropriety,” Irby continued.
‘Substantially related’ cases
Irby also looked to Rule 1.9 barring later representation of a different party in a “substantially related matter.”
“Although this issue is nuanced and the Court recognizes compelling arguments on both sides, the Court ultimately finds that the matters are substantially related, triggering a conflict of interest.” Irby said the facts surrounding Kahn’s divorce could play a role in any argument that Kahn committed adultery with Bhatti and could have prompted Kahn to recommend tactics to Bhatti.
“Ultimately, the Court is compelled by its requirement to prevent the appearance of impropriety and resolve all doubts in favor of disqualification,” Irby wrote. She said the hardship on the husband did not outweigh the obligation to maintain ethical conduct and preserve trust in the bar’s integrity.
Irby rejected Vaughn’s contention the disqualification motion was brought for tactical reasons, and she declined to find any fault or malicious intent on Vaughn’s part.
Motion to reconsider
Gross declined comment other than to say he was pleased at Irby’s “reasoned” letter.
Vaughn said he would ask for a second look.
“I respect the court’s analysis, but in this case, it is flawed because the decision is based upon assumptions of fact that are incorrect; there was no evidence presented at the hearing, only argument. I am filing a motion to reconsider and will attempt to set the record straight,” Vaughn said Nov. 3.
The Siraj-Bhatti divorce case is set for a two-day trial in April.
