July 25, 2011
Turnabout Not Fair Play
An Illinois attorney has agreed to a reprimand in a matter involving allegations that she had breached her duty of confidentiality after being discharged by a divorce client who wished to set aside a settlement.
The stipulated specifics after the attorney withdrew:
On November 2, 2007, [the client] filed a motion to set aside the oral settlement agreement in which she claimed that Respondent had not provided her with sufficient information to give informed consent to the agreement; that the agreement was unconscionable; and that Respondent coerced her into entering into the agreement. [The client] attached to the motion copies of six email communications between herself and Respondent in which they communicated regarding [her] divorce case.
Between November 2, 2007, and November 17, 2007, [the client's] husband's attorney, Ron A. Cohen, telephoned Respondent and told her that he intended to call her as a witness at the hearing on [the client's] motion to set aside the oral settlement agreement. Respondent told Cohen that she had information that would refute [the client's] allegations of attorney coercion.
Shortly thereafter, Respondent caused copies of at least 32 distinct email communications between [the client] and Respondent or her employees to be sent to Cohen. The materials sent to Cohen consisted of 519 pages, in part because they contained duplicate copies of some of the emails. The correspondence included information pertaining to Respondent's representation of [the client] that was confidential or secret.
Respondent did not contact [the client] prior to sending the materials referred to...above, to Cohen. At the time that she sent Cohen the emails, Respondent believed that she was entitled to use them to defend herself from [the client's] allegations that she had engaged in wrongful conduct pursuant to Rule 1.6(c)(3) of the Illinois Rules of Professional Conduct. Respondent considered the allegations to be false. However, Respondent did not research the applicability or scope of that Rule prior to producing the emails to Cohen, and she did not take steps to redact the emails, obtain a court order authorizing the release of those emails, or require a subpoena for the production of those materials.
In these matters, the governing principles are clear: notify the client, require a subpoena and let a court decide what is discoverable. (Mike Frisch)
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