Friday, May 14, 2010
An Illinois Hearing Board has recommended that bar charges against an attorney be dismissed. The attorney had represented a married man in litigation involving a woman (not his spouse). The representation involved a civil protection order against the woman. During the course of the hearing on the protective order, it was established that the woman was in an intimate relationship with the client. The attorney also was having an affair with the client. After learning that the client was three-timing her, she contacted the client's wife and disclosed the husband's perfidy. The predictable result of this disclosure was the wife's initiation of divorce proceedings.
The hearing board found that the attorney's contact with the client's lawfully-wedded wife did not violate her duty of confidentiality:
In charging a violation of Rule 1.6(a) the Administrator alleges that Respondent revealed a secret of Matthew's without his consent by calling Matthew's wife and informing her that Matthew had an affair with Ms. Tipton. "Secret" is defined in the Terminology section of the Illinois Rules of Professional Conduct as "information gained in the professional relationship, that the client has requested be held inviolate or the revelation of which would be embarrassing to or would likely be detrimental to the client." The Administrator states that Matthew's affair with Ms. Tipton was clearly information Respondent learned while representing Matthew in court on November 30, 2007, and that the revelation of this information to Matthew's wife was both embarrassing and detrimental to Matthew. Respondent argues that Matthew did not tell Respondent that he had engaged in a sexual relationship with Ms. Tipton and that once Ms. Tipton stated in court during a public proceeding that she had an affair with Matthew, that information was no longer a "secret" that Respondent was prohibited from disclosing.
Matthew admitted that he was intentionally "vague" in describing the nature of his relationship with Ms. Tipton to Respondent prior to the November 30, 2007 court hearing. Matthew also testified that he reluctantly told Respondent on November 9, 2007, that his relationship with Ms. Tipton was "physical," when Respondent filled out the form for his order of protection against Ms. Tipton and that he did not provide any further information to Respondent about the nature of his relationship with Ms. Tipton. On November 9, 2007, Respondent checked a box on the order of protection paperwork indicating that Matthew had a dating relationship with Ms. Tipton.
Respondent testified that Matthew did not tell her his relationship with Ms. Tipton was "physical." Respondent explained that she checked the dating relationship box on the order of protection form because Respondent told her Ms. Tipton wanted to have a dating relationship with him, but that he did not want to have one with her, which was why he was seeking the order of protection. Respondent testified that she was not aware Matthew had engaged in a sexual relationship with Ms. Tipton until Ms. Tipton described her relationship with Matthew in court on November 30, 2007, and that she was shocked by this information.
We do not find Matthew's testimony or the dating relationship box Respondent checked on the order of protection form sufficient to clearly and convincingly establish that Respondent knew Matthew had engaged in a sexual relationship with Ms. Tipton prior to Ms. Tipton's statements in court on November 30, 2007. We also find Respondent's testimony that she did not know Matthew had engaged in a sexual relationship with Ms. Tipton prior to the November 30, 2007 court hearing credible..This is consistent with the fact that Matthew went to great lengths to hide from Respondent the nature of his relationship with Ms. Tipton.
Accordingly, we conclude that the only information given to Respondent about Matthew's sexual relationship with Ms. Tipton was Ms. Tipton's public statements in court and the documentation Ms. Tipton brought to court with her regarding her relationship with Respondent. Ms. Tipton's disclosure of her affair with Matthew in open court made it impossible to identify how many individuals became aware of this information and therefore, the "secret" was not only known to Matthew, Ms. Tipton, and Respondent, but "in a legal sense it was known to the whole world." (citation omitted)
The hearing board also rejected former client conflicts charges:
In charging a violation of Rule 1.9(a)(2) the Administrator alleges that by calling Matthew's wife, Sally, and informing her that Matthew had an affair with Ms. Tipton, Respondent used information related to her representation of Matthew to his disadvantage because that information caused Sally to initiate divorce proceedings against Matthew. Rule 1.9(a)(2) prohibits an attorney from using information related to the representation of a former client to that client's disadvantage unless that information has become generally known. Respondent argues that no violation occurred because the information regarding Matthew's affair with Ms. Tipton had become generally known.
The evidence clearly established that on November 30, 2007, Ms. Tipton stated to the judge during a public proceeding in court that she had engaged in an affair with Matthew and that after learning this information in court Respondent called Matthew's wife and told her that Respondent had engaged in an affair with Ms. Tipton. We find Ms. Tipton's statements during a public proceeding in court about her affair with Matthew caused this information to become generally known. Accordingly, the evidence showed that Respondent did not reveal the information to Matthew's wife about his affair with Ms. Tipton until after the information had become generally known. As a result, we conclude the Administrator failed to meet his burden of proof as to Rule 1.9(a)(2) and recommend that charge be dismissed.
Look for an appeal by the Administrator here. The charging document in this matter was a basis for a question on my last year's American Legal Profession exam. (Mike Frisch)