Monday, January 4, 2016
A private reprimand has been imposed on an attorney for misconduct in her representation of her own son in a domestic case.
Respondent represented her son, John Doe, in a child custody dispute pending in Fayette County Family Court. Jane Smith, the child's mother and adverse party, sought to transfer the case to New York and filed a Petition for Registration of Foreign Child Custody Order and to Assume Jurisdiction in the Family Court of the State of New York (New York Family Court). The New York Family Court sent Mr. Doe a notice of the request, which stated that he may contest the registration by filing an objection within twenty days. Within twenty days thereafter, Respondent sent a letter to the New York Family Court Clerk, identifying herself as "the attorney representing the father in a family court proceeding in Lexington, Kentucky." In the letter, Respondent made legal arguments contesting jurisdiction and attached interrogatory answers, docket sheets, domestic violence petitions and orders, and Fayette County Family Court proceeding. Respondent did not send a copy of this letter to Ms. Smith, her counsel, or any other party. Respondent is not licensed to practice law in New York, and she did not make a motion to be admitted in New York pro hac vice.
Months thereafter, Judy Baker, a professional process server, attempted to serve Mr. Doe with legal process concerning the proceedings pending in New York. Ms. Baker went to the address provided to her by her employer and was met at the door by Respondent. Ms. Baker testified that Respondent refused to accept service and yelled and cursed at her. Respondent testified that she never yelled or cursed but was only instructing Ms. Baker how to lawfully serve process.
The Kentucky Supreme Court rejected the argument that New York ethics rules applied...
even if we agree with Respondent that the New York ethical rules should govern, New York Rules of Professional Conduct, like Kentucky's rules, prohibit ex parte communication and the unauthorized practice of law.
Notably, conflict of interest charges were not sustained
Concerning count IV, the Trial Commissioner did not find sufficient evidence of a conflict of interest, and we agree. Some risk exists that Respondent's personal interest in her relationship with her grandchild may have hampered her representation of Mr. Doe; however, the mere existence of that relationship alone is not sufficient to establish a conflict of interest.
The court affirmed two findings of misconduct and rejected two other such findings. (Mike Frisch)