Sunday, July 17, 2011
The Vermont Supreme Court has imposed a public reprimand of an attorney who engaged in deceit in connection with her firm's representation of a divorce client.
The court set forth the facts:
Respondent was admitted to practice law in Vermont in 2001 and was hired to work for a Burlington law firm in January 2006. In November 2007, a client hired the firm to represent her in a divorce from her then-husband. In early February 2008, before becoming aware of her firm’s representation of the client, respondent met the client’s husband and began dating him. On or about February 19, 2008, respondent saw her firm’s client list and realized that she was dating the husband of her firm’s client and that the firm was representing the client in a divorce proceeding against the husband. Within several hours of discovering this information, respondent informed the firm’s senior attorney that she had recently become romantically involved with the husband. Respondent requested that the firm create a “conflict wall,” which she believed would prevent her from participating in any representation of the client and allow her to continue dating the husband.
The day after meeting with respondent to discuss her conflict, the senior attorney left respondent a message indicating that respondent’s employment would be terminated if she refused to end her relationship with the husband. The next day, respondent told the senior attorney that she had terminated the relationship. In reliance on this representation, the senior attorney disclosed the situation to the client. After consulting with another lawyer, and relying on the senior attorney’s representation that respondent had terminated the relationship with her husband, the client decided to continue using the firm to represent her in the divorce.
However, respondent did not entirely cease contact with the husband. On February 26, 2008, she ordered a gift of chocolates to be delivered to the husband. At some point between February 21 and March 8, 2008, respondent and her children spent time with the husband and his children at a local health club pool. Respondent and the husband were also together on other occasions during this period.
On March 8, 2008, the client left the state to seek treatment for her health. The client and her husband had previously negotiated an agreement stating that the husband could move into the marital home to care for the children in the client’s absence. On the same day that the client left for treatment, respondent and her children joined the husband and his children at the marital home and spent the night. Members of the client’s family learned about respondent’s stay and contacted the senior attorney about it on March 11, 2008.
The senior attorney confronted respondent about her overnight stay with the husband, and respondent admitted to it and admitted that her relationship with the husband had resumed. The senior attorney immediately terminated respondent’s employment with the firm. Respondent and her children continued to live with the husband for several months after the termination of her employment.
The conduct violated Rule 8.4(c) in the attorney's concealing of the relationship from the firm.
The court majority discussed the application of the ABA standards on bar sanctions but concluded:
The Panel found that respondent’s behavior was selfish, and it was. But it was mitigated, to be sure, by the fact that she acted not for greed or glory, nor for malice or lucre, but apparently for romantic reasons. The harm to the firm and the client, however, remained the same.
A hearing board had imposed a six-month suspension. Bar Counsel sought disbarment before the court.
Justice Dooley would impose the six-month suspension, as the attorney had intentionally created a conflict for the firm:
The misconduct in this case involved deceit, and the impropriety of the behavior was obvious. After definitively being told that she could not maintain both her position at the firm and her relationship with the opponent of the firm’s divorce client, respondent chose to continue or restart relations with the opponent-husband, while failing to disclose the ongoing relationship and the conflict of interest it created. The senior attorney relied upon respondent’s promise to terminate the relationship with the husband and continued to employ respondent and to represent the client, unaware of the renewed conflict of interest. Respondent understood the conflict of interest that was created by her conduct as shown by her misguided request for a “conflict wall.” As the Panel found, and the majority recognized, respondent’s actions damaged not only the client, but also damaged the firm and the senior attorney’s relationship with the client. Respondent’s behavior illustrates a serious lack of judgment and lack of moral character that reflects adversely on her fitness to practice law.
Chief Justice Reiber joined the dissent. (Mike Frisch)