October 26, 2009
No Rough-and-Tumble World
A justice of the Maine Supreme Judicial Court affirmed the imposition of a public reprimand of an attorney who represented a client in a contentious divorce proceeding: "[the client] suffers from bipolar and borderline personality disorders which are treated with prescription medication. [The client's] mental health status was a central issue in the custody aspect of the divorce proceeding."
The client was admitted to a mental health facility as a hearing neared and settlement negotiations seemed promising. The attorney honored the client's direction not to disclose the hospitalization to opposing counsel. The attorney knew that opposing counsel "would be very interested in her client's mental health status" but deflected counsel's inquiries when pressed in a telephone conversation with him.
In this appeal, the single justice agreed that there was no affirmative duty to disclose. The attorney could have declined to comment. However, "[opposing counsel] was entitled to believe her answer would not be dishonest...In fact, [the answer] was patently intended to misrepresent the gravity of the situation and keep the settlement viable...Attorneys are skilled in the use of language. While nothing prevents them from using those skills to argue and communicate effectively on behalf of their clients, there is no license for patently false statements or statements that employ strategic omissions intended to mislead. While those practices routinely occur in the rough-and-tumble world of the marketplace or human relations, they are beneath the dignity of the law." (Mike Frisch)
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