Tuesday, May 16, 2006

Case Law Development: North Dakota Holds Sex With Divorce Clients Constitutes Conflict of Interest Even if No Specific Rule Prohibits These Relationships

The North Dakota Supreme Court suspended an attorney for 90 days who had accepted about $20,000 from a mother he was representing in a custody action without providing accounting or billing statements and without determining what portion of the funds received were for fees not yet earned. The attorney also failed to maintain records of the cash payments from the mother and did not deposit the payments into a trust account. He also had begun a sexual relationship with the client during the representation.   

The hearing panel had recommended a 30-day suspension for the fee violations, they did not recommend any sanction for the sexual relationship, as North Dakota Rules of Professional Conduct did not have a rule specifically prohibiting sexual relationships with clients (a new rule on the subject will take effect in August) and there was no proof that the sexual relationship affected the attorney's independent professional judgment. 

The North Dakota Supreme Court agreed that there was clear evidence of violation of Rule 1.5 on fees, the court disagreed with the hearing panel's analysis of the propriety of the sexual relationship.  Reviewing decisions from other courts, the court concluded that there was ample evidence of violation of the conflict of interest rule: "[Attorney] is an experienced lawyer who had to have known that the sexual relationship jeopardized the disposition of his client's custody case. The absence of a bright-line rule prohibiting sexual relationships with clients, and the lack of evidence of impaired representation, provide no excuse. The client's "motives" for becoming involved in the sexual relationship with [Attorney] are irrelevant. By engaging in a sexual relationship with his client during the course of the representation, [Attorney] placed his own interests above those of his client."

Disciplinary Board v. Chinquist, 2006 ND 107 (May 16, 2006)
Opinion on the web (last visited May 16, 2006 bgf)

http://lawprofessors.typepad.com/family_law/2006/05/case_law_develo_17.html

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