Monday, August 22, 2011

"He Said, She Said"

The South Carolina Supreme Court has ordered a suspension of six months of an attorney who had relocated his South Carolina practice to Maryland. The misconduct at issue involved his representation of a divorce client ("Assistant") who was employed by the lawyer from whom the attorney rented office space.

The court found that the attorney had disclosed confidential information, split fees and encouraged the client to commit fraud.

As to the confidentiality violation:

Respondent admits to violating Rule 1.6(a)...by disclosing private details of the circumstances surrounding Assistant's divorce action to his friend through e-mail.  These disclosures included intimate details about Assistant's marital relationship and the financial settlement Respondent secured for her.

The e-mails contained photos of Assistant and comments "objectifying [her] as a sexual manner during the time she was a client."

 As to the fraud:

... In our opinion, the hearing testimony and admissible exhibits, as a whole, establish that Respondent knowingly aided Assistant in misleading DHHS as to Assistant's income.  

This issue presents a classic case of "he said, she said."  Assistant gave detailed testimony of the conversations she and Respondent had regarding her need to maintain Medicaid coverage, his suggestion that they split her income between a 1099 and W-2 form, and their exchanges about the verification letters to be sent to DHHS.  Respondent denies ever having these conversations and maintains Assistant asked him to split her income and he naively complied.  The Panel found Assistant's testimony to be more credible than Respondent's.  A reading of the record as a whole convinces us of the same.  Although the Panel held inadmissible the e-mails and pictures exchanged between Respondent and his friend, the ODC read them into evidence for impeachment purposes.  The evasive and patently dishonest manner in which Respondent answered questions about the documents, in our view, denigrates his credibility in this factual determination.  For instance, the ODC asked Respondent about pictures taken of Assistant in the office, a space only they shared, and taken of her walking outside the office from the vantage point of Respondent's office window.  Respondent testified he did not recall taking any of the pictures, although he knew of no one else who could have taken them.  The ODC produced over seventy e-mails ostensibly exchanged between Respondent and his friend.  Respondent testified he could not recall writing any of the content of the e-mails.  Although it is conceivable that one might not specifically recall writing every word of past correspondence, we believe it unlikely that Respondent does not remember taking any of the pictures or writing any of the content included in approximately eighty exhibits.  Respondent's testimony regarding the e-mails and pictures calls his credibility into question.

Furthermore, Respondent had a personal interest in assuring Assistant maintained her Medicaid benefits because he wished to bring her on full time, but he was either unwilling or unable to pay the costs of her health insurance.  The record establishes their close relationship and Respondent's desire to help Assistant in her personal matters.  Respondent's interest in assuring Assistant maintained health coverage weighs in our factual determination that Respondent aided Assistant in misrepresenting her income to the government.

Although Respondent testified he was unaware of the specifics of Assistant's Medicaid coverage, we believe he was fully apprised of her coverage, having represented her during her domestic case.  With knowledge of her dependence on Medicaid, Respondent testified he believed Assistant requested the split in income for legitimate tax planning purposes, and that it suddenly "dawned on him" a month after Assistant left his employment, and shortly after he was notified she planned to pursue a legal malpractice suit against him. 

In its entirety, we find Assistant's rendering of the facts regarding the representation of her income more credible than Respondent's.  Therefore, we conclude Respondent violated Rules 8.4(d) and 8.4(e)...

The attorney also mishandled escrowed funds. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/08/the-south-carolina-supreme-court-has-ordered-a-suspension-of-six-months-of-an-attorney-who-had-relocated-his-south-carolina-p.html

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