Thursday, July 29, 2010
The Illinois Administrator has filed a complaint alleging misconduct on the part of attorney who represented an administrative law judge in a marriage dissolution. Both parties in the divorce case were lawyers.
The complaint charges that, after over a year of representation, the attorney and client had a disagreement over the terms of settlement while engaged in a court-supervised settlement conference. While a settlement was reached orally, the parties still disagreed when attempts were made to reduce the terms to writing. Shortly thereafter, the attorney sought and was granted leave to withdraw from the case.
The client then sought to set aside the oral settlement, claiming that the attorney had not provided sufficient information about the terms and had coerced her into accepting an agreement.
Opposing counsel then contacted the attorney. Here the real problems start. According to the complaint, the attorney told opposing counsel that she had evidence to refute the coercion claim. She accessed her firm's records and obtained e-mail correspondence between the client and the law firm over a 15 month period. The attorney directed an associate to hand-deliver "at least 519 pages" of the printed copies to opposing counsel, including:
An e-mail message sent by [the client] to Respondent and the associate] on April 18, 2007, in which [the client] provided information regarding her then-current assets;
An e-mail message sent by [the client] to Respondent on April 22, 2007, in which [she] urged Respondent to pursue additional discovery in the case, including by seeking additional information regarding [the husband's] income;
An e-mail message sent by [the client] to [the associate] on May 7, 2007, in which [she] inquired about any strategic benefits to be derived from bifurcating the trial in her divorce case;
An e-mail message sent by [the client] to Respondent and [the associate] on May 12, 2007, in which [she] set forth a proposal for settling marital debt issues;
An e-mail message sent by [the client] to Respondent on May 15, 2007, in which [she] set forth her positions regarding a proposed division of marital assets, child support, maintenance, and college expenses for the [parties] child;
An e-mail message sent by [the client] to Respondent on May 17, 2007, in which [she] discussed issues relating to maintenance, child support, marital property division, debt allocation, and tuition; and
An e-mail message and its attachment sent by [the client] to [the associate] on May 20, 2007, consisting of a document authored by [her] and setting forth her versions of various events during her marriage; her thoughts, impressions, and mental states regarding those events; and her concerns regarding her future income and employment.
Opposing counsel shared the e-mails with his client, who had a paralegal review and summarize the information. At the hearing to set aside the settlement, opposing counsel produced the e-mails to the wife's new attorney. The judge barred the use of the e-mails as evidence at the hearing.
The attorney is alleged to have violated the duty of confidentiality by revealing client confidences or secrets without client consent. There remains the issue of the behavior of the opposing counsel and client in accepting, reviewing and attempting to use the e-mails. (Mike Frisch)