Friday, October 1, 2021

Adverse Disclosures Violated Duty Of Confidentiality

The District of Columbia Court of Appeals accepted the consent discipline of a 60-day suspension with 30 days stayed and one year of probation for an attorney's violation of the duty of confidentiality to the client in a custody matter.

The Hearing Committee report described the adverse disclosures

After April 3, 2018, Respondent attempted to communicate with [client] V.P., but V.P. did not return her calls and messages.

During a telephone call on May 3, 2018, Respondent spoke with the Guardian ad litem in the case and disclosed that: she had not heard from V.P. in over a month; she had visited V.P. in the hospital where she had given birth to a new child and witnessed an argument between V.P. and the baby’s father who told her V.P.’s boyfriend was a drug dealer; after V.P. was released from the hospital, she did not have provisions for the baby, including a place for the baby to sleep; V.P.’s friend told her that the new baby was no longer in her custody but in the custody of the baby’s father; V.P.’s living arrangements were not adequate accommodations for D.P.; and that she had helped V.P. get a job interview but V.P. declined the interview because she did not like the way someone at the job looked at her.

Respondent told the Guardian ad litem that she was worried for the safety of V.P.’s newborn baby and that she did not think V.P. should have sole custody of D.P.

Respondent repeated some her concerns in a May 8, 2018 email to the presiding judge’s chambers, and in a separate email to counsel for T.W.

T.W. is the subject child's paternal grandmother, the adverse party in the custody dispute.

The client later appeared for trial

On June 11, 2018, Respondent appeared for trial. Respondent still had not spoken with V.P. and therefore expected that V.P. would not show up and a default proceeding would ensue. However, V.P. did appear at the trial.

At the beginning of the hearing [on the day of trial], Respondent told the court that V.P. had been unreachable for two months and because she had not spoken with V.P., she was not prepared to go forward with the trial. She also told the court that based on her own personal observations of what she had seen in the last several months she was not in a position to endorse what V.P. was seeking.

The court took a brief recess to allow Respondent to speak with V.P. and determine whether she wanted to proceed with Respondent as counsel. During that conversation V.P. informed Respondent that she wanted to move for a continuance and find a new attorney.

After consulting with V.P., Respondent moved to withdraw from the case and to continue the trial to allow V.P. to find another attorney to represent her.

It was stipulated that 

The parties agree to the following circumstances in mitigation, which the Hearing Committee has taken into consideration: Respondent violated the Rules because she was concerned about the safety of minor children, she has no prior disciplinary history, she has cooperated with Disciplinary Counsel, and she has expressed remorse.

The probation involves no further misconduct and 12 hours of CLE approved by Disciplinary Counsel. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/10/the-district-of-columbia-court-of-appeals-accepted-the-consent-discipline-of-a-60-day-suspension-with-30-days-stayed-and-one.html

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Comments

this is problematic. It seems 1.6(c)(1) would appy here and that she should not have consented: (c) A lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
(1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or

Posted by: George Weiss | Oct 2, 2021 8:28:39 PM

notably-this appears to require only a "reasonable belief" not being correct.

Posted by: George Weiss | Oct 2, 2021 8:29:55 PM

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