Attorneys acting too clever in assisting clients to repudiate an agreement

Recently, and for only the second time in my career, an opposing party attempted to repudiate a family court agreement that he or she had properly executed.  In the first instance the opposing party claimed she was “coerced” into entering the agreement.  In this new instance the opposing party claimed she was unaware of how language she didn’t like had been handwritten into a court approved agreement.

Such repudiations can be very frustrating for the opposing party and attorney–I know I find it frustrating.  The other party is basically attempted to extinguish some of the benefit of one’s client’s bargain.  While not really a remedy, there is a useful strategy I use when this situation arises.

If opposing counsel was the attorney who helped the client negotiate, draft or execute the agreement, this attorney becomes a witness on the issues the opposing party raises in repudiating the agreement.  Since that attorney is now a witness on a contested issue in the case, the opposing party needs to retain new, different, counsel.  See Rule 3.7, South Carolina Rules to Professional Conduct (“A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”).

Further, since discussions between the attorney and client are germaine on the issue of whether the agreement can be repudiated, the opposing party waives attorney-client privilege in repudiating the agreement.  See e.g., U.S. v. Bilzerian, 926 F. 2d 1285 (2nd Cir. 1991) (“the attorney-client privilege cannot at once be used as a shield and a sword”).

Given the hardships that can be imposed on an opposing party who attempts to repudiate his or her agreement, a threat to make that party’s attorney a witness is often sufficient to cause the party to withdraw a claim of repudiation.   While this reversal returns the parties to the previous status quo, this withdrawn repudiation makes the opposing party appear to lack credibility.

When a client is unhappy with an agreement he or she has clearly entered, the temptation exists to assist the client in repudiating that agreement.  Attorneys counseling clients to do this need to be aware they may be making themselves witnesses in their clients’ case and also need to be concerned that withdrawing such repudiations damage their clients’ credibility.  This is one of those circumstances in which an attorney’s advice can be too clever for the client’s own good.

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