Monday, March 31, 2014

Sixteen Years Later, 61 Days

The Kentucky Supreme Court concluded that an attorney had represented divergent interests in violation of conflicts of interest rules.

The court found that the attorney had represented a criminal defendant and the estate from which he would be disinherited under the slayer's statute.

The court rejected charges that the attorney charged a contingent fee in a criminal case.

The court imposed a sixty-one day suspension, noting the delay

A litany of words and phrases may be used to describe the long journey of this disciplinary case and the factual backstory preceding it, but words like "swiftness," "celerity," "dispatch," or "alacrity" are not included in the lexicon. This disciplinary proceeding and the facts giving rise to it cover a sixteen-year period: a death; an indictment; a manslaughter trial; a conviction and sentencing; an unsuccessful criminal appeal; an order of post-conviction relief based on ineffective assistance of counsel; and two sets of disciplinary complaints against Respondent, who represented the accused in the criminal case and represented him and others in related matters...

It was the unnatural death of one man that set in motion the chain of events.

The court rejected numerous ethics charges but found a conflict violation

The Court has been hesitant to find ethical violations in most probate settings. Indeed, Rule 1.7 authorizes multiple representations where the representation is not adversely affected and the clients consent to the representation. Respondent obtained waivers from each of the Manning brothers and maintained that attorney-client confidentiality was never an issue between her, the executor and the Manning brothers The fact is that the interests of the Manning brothers were diametrically opposite because of Kentucky's slayer statute. Respondent could not have reasonably believed that the representation would not be adversely affected when one of the clients is on trial for killing the testator and a negative outcome in that case would bar that client.from taking under the will. No waiver could make that conflict disappear. Moreover, Respondent prevailed on the executor to use estate funds to pay for expert witness fees in Manning's criminal defense. This was clearly an unallowable use of funds from an estate where such an expenditure had nothing to do with the administration of the estate and where the outcome of who was entitled to the benefits of the estate was clearly in issue. It is noted also that the transaction was of financial benefit to Respondent as well. Had the estate not paid the bill, Respondent would have likely been obligated to pay it.

A dissent would find that the attorney engaged in incompetent representation and would suspended for 120 days. (Mike Frisch)

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