COA reverses disqualification of Fishers attorney representing ex-wife in child support matter

An Indiana attorney who was disqualified from representing his ex-wife in her post-dissolution matter from a previous marriage was not prevented from doing so a second time because the basis for his first disqualification no longer existed, the Court of Appeals of Indiana has ruled.

About 10 years after parents Lydia and Brian Rockey divorced in 2010, Lydia filed a contempt petition against the father alleging that he had denied her parenting time. Brian responded by petitioning to modify parenting time and, a guardian ad litem was appointed.

Fishers attorney Robert E. Duff of Indiana Consumer Law Group entered an appearance for Lydia in the matter in 2020 before Brian moved to disqualify Duff on grounds of violation of professional conduct rules. Lydia was married to Duff from 2013 to 2019 and at the time was pregnant with Duff’s child.

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

The Hamilton Circuit Court disqualified Duff and the parties subsequently came to an agreement about parenting time, eliminating the need for a hearing.

Eight months later, in June 2021, Brian sought reimbursement for his alleged overpayment of child support. Duff again entered an appearance for Lydia, to which Brian moved to disqualify Duff on the sole basis that he had been “previously disqualified from representing” Lydia. However, he raised no new grounds to support his motion.

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

“After parties divorce, post-dissolution issues can crop up at different times, even years apart,” Judge Nancy Vaidik wrote for the COA. “These issues can be vastly different, requiring different evidence and witnesses. Given this reality, an attorney disqualified from one post-dissolution matter is not automatically disqualified from a second, later arising post-dissolution matter if the basis for the first disqualification no longer exists. This is especially so considering motions to disqualify under Rule 3.7 are viewed with caution given the potential for abuse.

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