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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37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”).
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* Retired Senior Judge assigned to the Superior Court.
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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
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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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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
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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
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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
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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
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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
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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.”).
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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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(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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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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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
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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
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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.
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