Wednesday, February 4, 2009
A report and recommendation filed last week in Arizona raises interesting questions concerning the level of appropriate sanction. The lawyer was retained by a client who operated a small day care out of her home. While in her care, her four year old son suffered a broken femur. When the injured child was interviewed a few days later, he was under the influence of codeine.
The client was considered a suspect in a possible case of child abuse. The lawyer was convinced that the charges were baseless. Armed with that conviction, he undertook the representation of the father and the injured child in addition to that of the mother. When police told him he could not represent the injured child due to a conflict, he pressed his claim of a valid attorney-client relationship. In the criminal case against the mother, he drafted two "witness statements" for the injured child and submitted them to the court. The prosecutor raised the conflicts issue but the criminal charges were resolved by a diversion agreement.
The attorney denied that there was any conflict and confirmed that he never advised the clients of potential conflicts or obtained a waiver. He contended that the charges were an "absolute and complete farce." As the hearing officer found: "The bottom line is that [he] feels that even though there is a loud and clear potential for conflict, he can proceed in the face of that conflict if he disagrees with the facts. This argument cannot [withstand] scutiny." The hearing officer found a clear conflict with real potential for harm to the child.
In the bar investigation, questions were raised concerning the fee agreement. The attorney claimed that the information was privileged. The hearing officer found that there was no written fee agreement in light of its non-production.
The conflict charge was premised on the problem of representing both the accused mother and the injured child. The hearing oficer found a significant risk that the representation of one client would materially limit the responsibility to the other.
As to sanction:
This is a difficult case, but not because of the facts or because there is any doubt about whether a conflict existed that required [him] to either withdraw or get written consent from his clients. The difficulty is due to [his] attitude toward the Bar in providing the Bar with the information that it had requested regarding hius fee agreement with the [clients], and primarily due to his conduct and demeanor during the hearing in this matter.
The hearing officer notes that an accused attorney is fully entitles to mount a forceful defense. the lawyer called the police officer a liar, the prosecutor incompetent, the bar prosecutor a "joke", "crap" and "clueless." Even the hearing officer got a dose of the lawyer's "clear and present anger."
So what's the sanction? The hearing officer, consistent with the Bar's recommendation, proposes a censure and probation for one year. The lawyer must submit to an assesment of his conflicts checking procedure (checking was not the problem here) and attend the Bar's "10 Deadly Sins of Conflict" CLE. (Mike Frisch)
Update: I have reworked the post in response to the comment.