December 6, 2010
Bad Behavior Not Unethical
In a bar complaint brought by the opposing party and a "friend and supporter" in a highly-charged domestic relations matter, a single justice of the Maine Supreme Court held that none of the charges of ethical misconduct (and there were a laundry list of such charges involving virtually every form of litigation abuse) had been proven by a preponderance of the evidence.
The court handed out no plaudits for the behavior of counsel for both husband and wife. The accused had represented the husband throughout the proceedings; the complainant had been represented by seven different lawyers and also had been pro se. The single justice concluded that the four discreet instances of alleged "intemperate and bad practice, and perhaps ethical violations" must be considered in light of the years of highly charged exchanges between the parties and their attorneys:
...finding an ethical violation proved by a preponderance of the evidence requires more than showing that an attorney was uncivil, or used harsh words, or forgot good manners. It requires proof that a specific rule was violated...
The attorney is held to the standard of a competent and rational attorney acting on circumstances as they reasonably appear.
The opinion in 65 pages long and explains in exacting detail why, in the justice's view, the bad behavior did not rise to the level of an ethics violation. Comfort to those who labor in contentious litigation: a pox on both houses. (Mike Frisch)
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