Monday, November 4, 2013

Difficult Client Not Mitigating Factor

A single justice of the Massachusetts Supreme Judicial Court rejected the suggestion that an attorney who was representing a "difficult" client in a care and protection proceeding faced an ethical dilemma.

 Rather, the attorney made misrepresentations to a court and failed to correct the client's false testimony, knowingly disobeyed a court order and engaged in a conflict of interest.

He was suspended for a year and a day.

The client had a 17 year old daughter living with her. The daughter's father was her legal custodian and lived in a southern state. The Department of Children & Families obtained custody of the daughter after a suspected alcohol and drug overdose.

The daughter fled from DCF custody after a group movie outing. The attorney helped the daughter in her efforts to flee the jurisdiction by providing her with clothing and money for a bus ticket. The daughter left to return to her father, a fact known by both the attorney and his client.

He then represented the mother in juvenile court in the daughter's care and protection proceeding. He said that the daughter was "on the run" but failed to disclose that she was with the father. The mother also testified falsely about her knowledge concerning the daughter's whereabouts.

In the ensuing bar case,  a hearing committee

credited his testimony that the whole situation had been very difficult for him and he found his duties to the client and the court to conflict. It cited his testimony that he had reviewed some MCLE material and law review articles concerning conflicts between [confidentiality and candor to a tribunal] and concluded that the authorities disagreed over the proper course of action.

The committee recommended a public reprimand. Bar Counsel appealed.

The Board of Bar Overseers rejected the "finding that [the mother's] status as a difficult client constituted a mitigating factor" and proposed a suspension of a year and a day.

Justice Cordy adopted the board's recommendation. The attorney "clearly intended to mislead the court" and "seriously undermined the court's efforts to reach the truth." (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2013/11/a-single-justice-of-the-massachusetts-supreme-judicial-court-rejected-the-suggestion-that-an-attorney-representing-a-difficul.html

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