COA overturns disqualification of Fishers lawyer representing ex-wife in child support case

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An Indiana lawyer who was disqualified from representing his ex-wife in her post-dissolution case from a previous marriage was not barred from doing so a second time because the basis for his first disqualification did not exist more, the Indiana Court of Appeals ruled.

About 10 years after parents Lydia and Brian Rockey divorced in 2010, Lydia filed a contempt motion against the father alleging he had denied her parenting time. Brian responded by requesting a change in parenting time and an ad litem guardian was appointed.

Fishers’ attorney Robert E. Duff of the Indiana Consumer Law Group appeared for Lydia in this case in 2020 before Brian moved to disqualify Duff for violating professional conduct rules. Lydia was married to Duff from 2013 to 2019 and was pregnant with Duff’s child at the time.

Specifically, Brian alleged that Duff’s portrayal of Lydia violated Rule 3.7 of Professional Conduct and that Duff spoke to the GAL on Lydia’s behalf about parenting time and would likely be a “necessary” witness at the hearing on the parenting time.

Hamilton Circuit Court disqualified Duff and the parties later reached an agreement on parenting time, eliminating the need for a hearing.

Eight months later, in June 2021, Brian filed for reimbursement of his alleged child support overpayment. Duff again participated in an appearance for Lydia, at which Brian offered to disqualify Duff on the sole basis that he had been “previously disqualified to represent” Lydia. However, he did not raise any new grounds in support of his motion.

The trial court again issued an order disqualifying Duff and certified the matter for interlocutory appeal. But the Indiana Court of Appeals, in a Tuesday decision overturned and returned, finding the trial court abused its discretion by Robert E. Duff and Lydia Rockey v. Brian Rockey, 21A-DR-1750.

“After the parties divorce, post-dissolution issues can arise at different times, even years apart,” Judge Nancy Vaidik wrote for the COA. “These issues can be very different, requiring different evidence and witnesses. Given this reality, a lawyer disqualified from a post-dissolution case is not automatically disqualified from a second post-dissolution case if the basis for the first disqualification no longer exists. This is especially true as motions for disqualification under Rule 3.7 are viewed with caution given the potential for abuse.

“…Because the second post-dissolution case is different from the first post-dissolution case and the basis for the first disqualification no longer existed, the trial court abused its discretion in disqualifying counsel Duff to represent Mother in the second post-dissolution case,” Vaidik concluded.

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