Friday, September 12, 2008

"Too Clever By Half "

The Kansas Supreme Court imposed a public censure of an attorney charged with ethics violations in a custody matter. The court concluded that the evidence was insufficient to establish a violation of Rule 4.3 (dealings with an unrepresented person), adopting the conclusion of a hearing panel dissent:

...we are persuaded by the dissent's analysis of the alleged violation of KRPC 4.3. The first part of that rule prohibits an attorney, who is dealing with an unrepresented person on behalf of the attorney's client, from stating or implying that the attorney is disinterested. Jenkins [the unrepresented] testified that Jensen [the accused attorney] did not state who he was representing. While Jensen may have been too clever by half in his interview techniques, we cannot say from the record that it is highly probable that Jensen intentionally implied that he was disinterested.

What is crystal clear from the evidence is that Jenkins misunderstood the role that Jensen was performing in the custody dispute. However, the interviewee's misunderstanding is not controlling. The second part of KRPC 4.3 directs that an attorney who "knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter" is to "make reasonable efforts to correct the misunderstanding." 2007 Kan. Ct. R. Annot. 532. The question, then, is whether Jensen should have known that Jenkins misunderstood Jensen's role.

In his letter to the trial judge, Jenkins acknowledged that he would have freely assisted Anderson's attorney with understanding everything concerning succession planning and transfers in the railroad industry. However, he said he felt humiliated and angry that he had been so forthcoming with other information, such as Mr. Duncan's salary, which he would not have shared if he had known with whom he was speaking. In other words, the contention is that Jensen should have known about the misunderstanding because of the scope of the information that Jenkins provided. However, we are unconvinced that the misunderstanding was readily apparent from the content of Jenkins' side of the conversation.

Moreover, there were other portions of the conversation which might well have provided Jenkins with a clue as to Jensen's role. When Jenkins said the children would want for nothing while residing with the Duncans because of Mr. Duncan's salary, Jensen responded that they would want for their father, at least suggesting an advocacy of the father's position. Given our clear and convincing standard, we cannot find that the evidence established that it was highly probable that Jensen should have known of Jenkins' confusion. Accordingly, we find that Jensen did not violate KRPC 4.3.

The court found insufficient evidence that the lawyer violated a judge's order to not assist his client with responses to a two-question "parenting quiz" but found he had improperly instructed a witness (the above-referenced Mr. Jenkins) to disregard a subpoena. (Mike Frisch)

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