Wednesday, January 23, 2008

Questionable Judgment

The South Carolina Supreme Court imposed a nine-month suspension on an attorney who took advantage of a vulnerable client. The client retained the lawyer in a custody dispute. The client suffered from depression and an eating disorder. Further, the client "desired a prompt resolution   of her case because she was concerned her husband would use her health against   her on the issue of custody." The lawyer continued to handle the matter after he and the client had commenced a sexual relationship. The court found that the relationship violated Rule 1.14 (client under disability). There were a number of instances of questionable judgment found by the court, including a heated encounter with the husband and a situation between the lawyer,the client and a friend of the client from which the friend emerged with a broken nose. Clearly, the lawyer's personal involvement with the client impaired his professional judgment. After a confrontation with the husband while the client was at the lawyer's home, the lawyer withdrew from the case and self-reported to the Office of Discipinary Counsel.

One rather disturbing passage from the opinion:

"Finally, respondent’s judgment is called into question for not only failing to inform the family court of Client’s problems with substance abuse, eating disorders, and other self-destructive behavior, but also for affirmatively supporting Client in her custody dispute in August 2004 when he knew of her problems.  By filing an affidavit in support of Client, respondent let his personal feelings for Client get in the way of his responsibilities as an attorney and officer of   the court.  His decision to get involved in a legal matter to support Client’s   bid for custody of two small children despite her numerous problems demonstrates   that respondent’s professional judgment was seriously hampered by his personal   feelings for Client. "

I hope the court did not intend to suggest that a lawyer is precluded from pursuing a client's objective to seek custody if the lawyer knows of the above-recited conditions. Isn't a lawyer ethically obligated to "affirmatively support" the client's position so long as that position is not frivolous as a matter of law? It does not appear from the opinion that the lawyer violated an ethical obligation of disclosure to a tribunal. Further, it appears that the client prevailed in the custody matter. (Mike Frisch)

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