Wednesday, June 24, 2009

No Clients, No Conflicts

The West Virginia Supreme Court of Appeals affirmed the recommendation of a hearing panel subcommittee (HPS) of the Lawyer Disciplinary Board to dismiss disciplinary charges that arose from a tragic car accident. Jonathan McRobie was charged with criminal offenses as a result the accident, in which fourteen-year-old Jodi Reed (his passenger) had been killed. Ms. Reed was on a wireless phone speaking to her mother at the time of the accident. The mother heard the aftermath (Josie did not die at the scene) and her recollections were relevant to the police investigation. 

Two days after the accident, the accused attorney met with McRobie's father concerning the possibility of retaining him. By coincidence, Reed's father appeared at his office seeking legal assistance while he was meeting with McRobie's father. Reed's father was advised of this and stated that "he did not want to meet with the [attorney] he he was going to represent McRobie." However, the attorney reached out to meet with Reed's father for about an hour later that afternoon. Reed's parents gave the lawyer factual information and the lawyer contacted an insurance adjuster on their behalf. Thereafter, the lawyer and Reed's parents disagreed as to whether he was their lawyer. The lawyer advised the Reeds that he had decided to represent McRobie in the criminal case. The Reeds filed a bar complaint.

The court describes the substance of the meeting between the accused lawyer and the Reeds:

 The meeting with Respondent and the Reeds was of an hour's duration. The Reeds recalled conveying factual information about the accident and asking questions about related legal issues. Mrs. Reed testified that she and her husband were seeking legal advice on a wide-range of issues, including insurance, the quality of law enforcement in the area and the procedural aspects of the criminal case. During the course of this meeting, the Respondent contacted the insurance adjuster, requesting that he be fair with the Reeds, and also arranged for a meeting between the prosecuting attorney of Mineral County and the Reeds. Respondent was not present nor did he request to be present at the subsequent meeting with the prosecutor and the Reeds.

The court identified the issues raised by the bar charges:

This case illustrates the difficulties that may arise when two potential clients seek to engage the same attorney. At the outset we note that both the Petitioner and Respondent agree that if this Court were to adopt proposed Rule 1.18 (Duties to Prospective Client), potential situations such as the one raised in this instant case would be less conflicted. As succinctly noted in Respondent's brief in support of dismissing the Statement of Charges, the American Bar Association noted in its comments that there are legitimate reasons for making distinctions between a potential client and an actual client:

              Prospective clients, like clients, may disclose information to a lawyer, place documents or other property in the lawyer's custody, or rely on the lawyer's advice. A lawyer's discussions with a prospective client usually are limited in time and depth and leave the prospective client and the lawyer free (and sometimes required) to proceed no further. Hence, prospective clients should receive some but not all of the protection afforded clients.
            

            Inasmuch as this rule has not been adopted by this Court and was not applicable at the relevant times herein, we address the allegations against Mr. James in light of the existing rules and regulations that were applicable. The ODC urges us to conclude that the Respondent's actions violated both Rule 1.7 and Rule 1.9 of the Rules of Professional Conduct. We address each separately.

 The court found that the concurrent client rule applies only when there are two actual clients. The hearing panel correctly found that the Reeds did not have an attorney-client relationship with the accused lawyer. Further, absent an attorney-client relationship and the exchange of confidential information, the court found that the former client rules were inapplicable. Thus:

Careful review of the testimony adduced at the hearing supports the HPS's conclusions that the Reeds did not provide Respondent with information that could have been used in the defense of McRobie to the disadvantage of the Reeds. The affidavit from the prosecuting attorney establishes that he agreed with the Respondent to not call Mrs. Reed as a witness. The Respondent himself testified that any information he learned from the Reeds regarding the accident was available through other means. Most significantly, the Reeds themselves were unable to identify any confidential information disclosed to Respondent. Rule 1.9(b) therefore does not apply to this situation.

            The burden was on the ODC to prove that the Reeds provided Respondent with confidential information not otherwise generally available. The HPS correctly found that the ODC did not meet this burden of proof.

I find this result somewhat disturbing. If there was no attorney-client relationship between the accused attorney and the Reeds, then there is a strong argument that his dealings with them violated Rule 4.3. A lawyer is not implying "disinterest" when making calls to an insurance adjuster on behalf of the supposed non-client.

The court notes that the Reeds were unable to identify "specific factual information... that would not have been otherwise available to any attorney representing McRobie." I think that is an unfair burden to place on the Reeds and irrelevant to the question whether they reasonably perceived that the accused was their lawyer. Mrs. Reed "testified  that she felt she was speaking to Respondent] as her attorney during [the] meeting." I find that perception quite reasonable under the circumstances. (Mike Frisch)

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