Wednesday, July 10, 2013
The Maryland Court of Appeals has disbarred an attorney who engaged in a "romantic, then intimate relationship" with her client in a divorce case.
The attorney also improperly communicated with the opposing party, made false statements and failed to cooperate with the discipline process.
The attorney had moved in with the client and shared expenses, which contributed to the client's child support payments. In addition to a conflict of interest in continuing the representation, the court majority found that this violated the "proprietary interest in litigation" prohibition of Rule of Professional Conduct 1.8(i).
This conclusion triggered a concurring and dissenting opinion by Judge Adkins, who discusses the common law antecedents of the rule and would hold that the sharing of living expenses has no link to "the notions underlying champerty and maintenance [which] focus on the person's acquisition of a specific interest in the litigation at hand."
The dissent views the Rule 1.8(i) ruling as having
broad implications for routine conduct that lawyers regularly engage in on behalf of family members and romantic partners. For example, if a lawyer's ailing father were to move in with him, and share income and expenses during some litigation against the father's health insurance company, which the lawyer was handling, he would "acquire an interest" in the litigation, presumably in violation of Rule 1.8(i). The same would be true if a lawyer were representing her brother in litigation, and she and her brother began living together, sharing expenses (Including those of litigation) and income. A lawyer who was handling litigation for an adult child could alse run afoul of Rule 1.8(i) if the child moved in with the lawyer, sharing expenses, during the litigation...In my view, there is no reason for this Court to be disciplining a lawyer for innocuous conduct of this type, that is, I submit, not uncommon among ethical private practitioners.
The concurrence/dissent, joined by Chief Judge Bell, would impose an indefinite suspension. (Mike Frisch)