Tuesday, February 25, 2020

Unnamed Attorney; Sterilized Facts?

The Kentucky Supreme Court has imposed private discipline in a published decision styled In re Unnamed Attorney.

The problem involved a conflict of interest

In the spring of 2015, Unnamed Attorney was hired by a brother and sister to represent them during the pendency of a guardianship action regarding their mother. During that proceeding, mother was represented by private counsel and by a court-appointed attorney. After the July 2015 district court finding of partial disability on the part of mother, Unnamed Attorney then represented mother in several family matters. After performing legal services for mother for nearly six months, Unnamed Attorney terminated the
representation in December 2015 without notice to mother and without taking any affirmative steps to protect her continuing legal interests. Unnamed Attorney continued to represent brother and sister and, in early 2016, when mother’s other daughter became involved in the guardianship case, that representation assumed an adverse position to mother in both the underlying disability/guardianship case and other related matters.

Mother’s other daughter ultimately filed a bar complaint against Unnamed Attorney, alleging that his representation of her mother was improper and conflicted with his representation of her siblings. The Inquiry Commission charged Unnamed Attorney with six counts...

An agreement for private discipline was reached and affirmed here

Unnamed Attorney acknowledges that his continued representation of brother and sister in the spring of 2016 became materially adverse to the wishes of his former client, mother, at that time. Unnamed Attorney points out, however, that his representation of brother and sister in early 2016 sought to restore mother to her previous living arrangements and financial status, as expressed by mother prior to her rapid and significant cognitive deterioration in late 2015. In other words, Unnamed Attorney maintains that his conduct was well-intentioned, as he sought to protect mother from financial exploitation by her other daughter, and additionally, the conflict of interest did not cause injury to mother. Thus, Unnamed Attorney believes a private reprimand is the appropriate sanction...

Here, Unnamed Attorney has no history of prior discipline. The ABA Standards Section 9.32 notes that a lack of history of discipline may be considered as a mitigating factor. Considering this fact, the range of sanctions previously ordered by this Court in similar cases, and Unnamed Attorney’s admission of the violations, we believe the proposed sanction to be an appropriate one.

Justice Keller concurred in the result

Though I concur in the Court’s decision to accept the terms of this negotiated sanction, I disagree with the majority’s decision to issue this as an Unnamed Attorney Opinion. The KBA asserts that the unique facts of this case will provide guidance to attorneys facing similar issues; however, the facts have been sterilized to prevent identification of the unnamed attorney and the family involved. As a result, the Court’s Unnamed Attorney Opinion will lend little guidance to other members of the Bar. Yet, the facts are not so sterilized that the family members involved could not identify themselves in the opinion, thus renewing the family turmoil.

It is within the discretion of the Court to issue an Unnamed Attorney Opinion instead of a private, unpublished reprimand. For the reasons stated above, I do not believe that we should exercise our discretion under the facts of this case to issue an Unnamed Attorney Opinion. I believe the better course of action would be to adopt the terms of the negotiated sanction in a private, confidential reprimand, thereby allowing the family to find closure in this ordeal.

The reprimand includes conditions. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/02/the-kentucky-supreme-court-has-imposed-private-discipline-in-a-published-decision-styled-in-re-unnamed-attorney-the-problem.html

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