Wednesday, January 27, 2010
A Colorado hearing board concluded that a lawyer engaged in litigation misconduct on behalf of a client with whom he had an "intimate, albeit non-sexual, relationship." The underlying case involved a divorce where the issues were division of property and maintenance, but not marital fault. The client wanted to use depositions to explore her spouse's alleged misconduct during the marriage. According to the hearing board, this "misguided strategy prevailed when [the lawyer] adopted it. Respondent failed to exercise professional and independent judgment on behalf of his client." The hearing board suspended the attorney for a year and a day with all but 90 days stayed upon completion of two-years probation.
The litigation strategy related to deposition questions posed to the husband and the parties' adult son about the husband's alleged sexual misconduct. After the representation commenced, the adult son found a laptop computer that contained photos of the attorney and client in Belze. He became angry at his mother and the lawyer. The daughter also had concerns about their relationship. The lawyer admitted the trip and that he had signed missives to the client that contained terms of endearment.
It also was established that the lawyer set up his office in the client's home and slept with the client in her bed on a platonic basis. After his client had been roughly handled by opposing counsel at her deposition (she called counsel a "bull in a china closet"), the inappropriate questioning of the husband and son followed and led to the attorney's disqualification. The questions are set out in the opinion. The disqualification was upheld with a finding that the attorney's involvement in the case had ratcheted up the heat of the litigation.
The board found that the attorney had a conflict created by the relationship with the client and had asked "irrelevant and loathsome questions that served no substantial legal purpose." His "emotional commitment to [the client] compromized his professional judgment." He also "still believes he acted appropriately in representing [the client]." (Mike Frisch)