Sunday, June 10, 2018

No Rule 4.3 Violation In Dealings With Opposing Party

The Maine Supreme Judicial Court imposed a public reprimand of an attorney for conduct in the course of representing a client 

The violations of the Maine Rules of Professional Conduct that are alleged arose out of events that occurred before and during a hearing that occurred before a magistrate at the Skowhegan District Court on March 9, 2015. That proceeding related to a petition for determination of paternity and assessment of child support obligations filed against Shusta's client by the Maine Department of Health and Human Services, FM-2014-00126, and a separate petition for determination of parental rights and responsibilities filed by Shusta on behalf of his client, the father of the child, against the mother of the child, FM-2015-0003.

At all times relevant to the ethics complaint, the mother was not represented. The mother was appointed counsel after she filed a petition for termination of the father's parental rights following the District Court hearing.

At some time prior to the District Court hearing date, Shusta, acting on behalf of the father, contacted the mother to explore the possibility of negotiating an agreement in the parental rights matter. The outlines of the proposed agreement were that (i) the mother would have sole parental rights and responsibilities for the child, (ii) the father would have no contact with or responsibility for the child, (iii) the father would pay retroactive child support for the child in an amount determined in the proceeding initiated by the Department of Health and Human Services until the parental rights and responsibilities order and a concurrent order terminating the father's parental rights were entered, and (iv) the mother would initiate a termination of parental rights proceeding that would be agreed to by the father. The object of the termination of parental rights and responsibilities proceeding would be to end any of the father's obligations toward or responsibilities for the child.

Significantly the court squarely rejected a Rule 4.3 violation

In domestic relations matters, many parties are unrepresented. And in many cases, as in this case, one party is represented and the other party may not be represented. In such circumstances, experience indicates that the attorney for the represented party often speaks with the unrepresented party about the substance of the case with an eye towards resolution of the matter without a full trial. There is no ethical violation in such contact. Such contact is encouraged by court processes in domestic relations matters with the hope of avoiding trauma to children by promoting resolution of cases by agreement without contested hearings. When, as here, agreements are reached in preliminary proceedings, magistrates are authorized to "enter agreements on the record at the conference." M.R. Civ. P. 110A(b)(1).

Such discussions and negotiations occur in all types of cases, including cases where determination of child support may be an issue. Sometimes, there may even be a partial unity of interest between the represented party and the unrepresented party. The unrepresented party may be desirous of having sole parental rights to the child, with the represented party having no participation in the unrepresented party's life or the child's life. Or, as here, the unrepresented party with the child may have no personal interest in collecting child support benefits from the represented party because the child support benefits would actually be paid to the Department. In such circumstances, it is neither unusual nor unethical for the attorney of the represented party to draft documents for the parties to sign to memorialize and implement agreements the parties have reached with regard to parental rights and responsibilities and child support.

In the child support collection case, the Department certainly had an interest adverse to both the mother and the father, because it wanted to continue to collect child support payments from the father to offset the payments that the State was making to the mother to support the child. However, this adverse interest does not create the type of conflict of interest between the represented father and the unrepresented mother that would make the father's attorney's dealings with the mother an ethical violation. In this proceeding, Shusta has been sanctioned based on the Grievance Commission's finding that he had misrepresented to the court the Department's position regarding the proposed settlement of the case. However, Shusta's dealings with the Department do not implicate Rule 4.3.

Thus, in the circumstances, the father's attorney's communications with the mother, his development of documents to implement their settlement agreement, and his drafting of a private termination of parental rights petition for the mother to file with the father's agreement, did not constitute a violation of Rule 4.3 or any other rule of ethics.

Any opinion suggesting that contact and drafting agreements between an attorney representing a party in a domestic relations matter and an unrepresented party in the same matter is an ethical violation could seriously complicate the processing of domestic relations cases. Such contacts must occur with the hope that, as occurred here, a domestic relations case can be resolved by agreements negotiated between the parties without the delay, cost and trauma to the child that result from fully contested proceedings. It must be noted also, that, beyond the contacts between the father's attorney and the mother, extra protection was provided by the fact that the trial court made an independent inquiry of the mother and the father about their understanding of the settlement agreement, and its implications and only indicated the court's approval of the represented terms of the settlement agreement after the court made its own inquiry of the parties. The Court concludes as a matter of law that the Grievance Commission erred in determining that the contact between the father's attorney and the mother, including the drafting of documents, where the court then made inquiry of both parties regarding their understanding of the settlement agreement, amounted to an ethical violation. Accordingly, the Grievance Commission's conclusion that Rule 4.3 was violated is vacated.

The violations

Considering what is left, the determination that Rule 3.3(a)(l) (Candor Toward the Tribunal) had been violated, the Court determines that appropriate sanction, in the circumstances, is a public reprimand. The Court determines that a period of probation, as ordered by the Grievance Commission after finding violations of both Rule 3.3 and Rule 4.3, is not merited. Testimony from the magistrate at the Grievance Commission hearing indicated considerable experience with Attorney Shusta and no indication of any significant problem with misrepresentation of matters to tribunals. Accordingly, a term of probation could add considerable cost and difficulty to an attorney's practice and is not warranted when there is no demonstrated problem that would be significantly resolved with a period of probation.

(Mike Frisch)

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