Friday, September 17, 2021

Jumping The Gun

The Maine Supreme Judicial Court affirmed misconduct findings and sanctions imposed for disclosures made to a potential opposing party without the authorization of the putative client.

After an initial meeting with the client to discuss domestic violence and a possible divorce, the complainant did not appear for a second meeting to sign a retainer agreement.


Ms. Doe had second thoughts about the divorce and failed to appear at that meeting. A day later, she contacted Attorney Rhoda and told him she changed her mind and did not need his services. During that conversation, Attorney Rhoda informed Ms. Doe that he had seen her estranged husband in the courthouse the day before and asked him if he had retained counsel so he could serve him with divorce papers. He talked only about service and not substance of the divorce, thinking he could save his client the costs of service by sheriff.

Ms. Doe contends that disclosure put her at risk of harm. She never returned to see Attorney Rhoda and he did not charge her for his time spent on the matter. About two weeks later, on February 15, 2019, she filed a bar complaint alleging he failed to maintain her confidentiality about the potential divorce matter. Attorney Rhoda responded he did not know she did not want her husband to know of the impending divorce. She contends that he should know domestic violence survivors are concerned with safety of their information, He maintains he was not aware of Ms. Doe's concern about disclosure of her information.

The court agreed with the panel below that the conduct violated the obligations of communication and confidentiality

While this conduct is clearly not violent or dishonest it does include a breach of trust at a minimum. Attorney Rhoda may have had good intentions when he spoke with Ms. Doe's husband, but as an experienced practitioner he should have understood his obligations, the sensitive nature of his presumed representation, the need for confidentiality until he obtains his client's consents and, in this case, most notably, the presence of a history of domestic abuse sufficient to warrant issuance of a protective order, His lack of sensitivity and lack of understanding of his obligations as an attorney rise to the level of a breach of trust sufficient for this Court to conclude that the Panel's Findings in this regard were not clearly erroneous and are affirmed.

The court accepted the sanction of reprimand and probation with conditions.

I use this Indiana decision to make a point to my students about the dangers of speaking without the client's authority. 

Respondent represented an organization that employed "AB." Respondent became acquainted with AB though this connection. In December 2007, AB and her husband were involved in an altercation to which the police were called, during which, AB's husband asserted, she threatened to harm him. In January 2008, AB phoned Respondent and told her about her husband's allegation and that she and her husband had separated. In a second phone call that month, AB asked Respondent for a referral to a family law attorney. Respondent gave AB the name of an attorney in Respondent's firm.  Respondent then called this attorney to inform her of the referral and to give her AB's phone number. The attorney called AB that same day and arranged a meeting the following day, when AB retained the attorney. AB told the attorney about the December 2007 incident and directed her to file a divorce petition. Respondent was aware that AB had retained the attorney from her firm and had filed for divorce. AB and her husband soon reconciled, however, and, at AB's request, the divorce petition was dismissed and the firm's representation of AB ended.

In March or April 2008, Respondent was socializing with two friends, one of whom was also a friend of AB's. Unaware of AB's reconciliation with her husband, Respondent told her two friends about AB's filing for divorce and about her husband's accusation. Respondent encouraged AB's friend to contact AB because the friend expressed concern for her. When AB's friend called AB and told her what Respondent had told him, AB became upset about the revelation of the information and filed a grievance against Respondent.

(Mike Frisch)

Bar Discipline & Process | Permalink


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