Thursday, October 18, 2007
A bar discipline case from Wisconsin illustrates the dangers of getting too closely involved with a client. The attorney represented a client in a criminal case. He engaged in a three-way sexual encounter with the client and the client's girlfriend but 'there was no evidence that [the attorney and client] engaged in sexual intercourse or intentionally touched each other's intimate parts." Thus, there was no violation of the rule that prohibits sex with a client. The lawyer also drank and smoked marijuana with the client, who had been prohibited from possession or use of controlled substances as a condition of bail. Also, the attorney was high on drugs and unprepared during the criminal trial.
In another matter, the lawyer represented a divorcing husband whose wife was pro se. He engaged in a three-way sexual encounter with the wife and another woman shortly after the husband fired him, which "showed a substantial social relationship during [the attorney's] representation...and a desire ...to pursue his own selfish interests." This established a conflict of interest. In other matters, there was a videotape showing him snorting cocaine and using marijuana with clients (he claimed that the snorted substance was either flour or salt). He also committed a slew of other violations such as accepting sexual intercourse as payment for legal services (although the referee did not make a specific finding to this effect), using drugs with clients, supplying drugs to clients, violating escrow obligations and falsely certifying that his escrow records complied with applicable rules.
The Wisconsin Supreme Court rejected the referee's conclusion that there must be a nexus between criminal acts (the drug use) and particular legal services provided to a client in order to establish an ethical violation. Both the lawyer and disciplinary counsel objected to the proposed 18 month suspension. The court suspended the attorney for three years and ordered that he pay the costs of the bar prosecution. He also must submit to random drug screenings for one year prior to reinstatement.
If you read this decision, you may wonder (as I do) why this is not a disbarment case. Standing alone, the escrow violations have a flavor of misappropriation. Other courts severely sanction lawyers for illegal drug use. (Mike Frisch)