William Herrscher 2014-07-01 02:48:30
Ethical issues in attorney fee arrangements. PREEMA, A SUBURBAN HOUSEWIFE (WHOSE NAME HAS BEEN CHANGED),allegedly earned extra spending money by acting as a “personal service provider” for male clients. Paul, her husband, was suspicious of her behavior. During their divorce proceedings, Paul’s private investigator—on stakeout at the local apartment brothel— watched Preema’s attorney arrive at her room wearing shorts, a T-shirt, and sunglasses, but carrying no briefcase. He left exactly one hour later. During Preema’s deposition, she explained that her lawyer came that day to pick up payment for his legal services. She testified that she paid her lawyer in cash but had no receipt. Paul’s attorney sought a motion to compel the opposing lawyer’s deposition. The court denied the request, suggesting that the lawyer refer the matter to a State Bar of Texas grievance committee. Would you file a grievance against this opposing counsel? Comment 17 to Texas Disciplinary Rule of Professional Conduct 1.06 (b)(2) concerning conflicts of interest provides the following: Raising questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation. … Where the conflict is such as clearly to call in question the fair or efficient administration of justice, opposing counsel may properly raise the question. Such an objection should be viewed with great caution, however, for it can be misused as a technique of harassment.1 The preamble to our ethics rules provides the following: “… Compliance with the rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion, and finally, when necessary, upon enforcement through disciplinary proceedings.”2 Furthermore, “… the client has a reasonable expectation that information relating to the client will not be voluntarily disclosed. ...”3 Understanding these cautions, the lawyer—in acting true to the Texas Lawyer’s Creed4—would report such conduct only when the opposing lawyer is clearly interfering with the fair or efficient administration of justice. This requires us to think and care about the legal rights of the person litigating against our client. Unfortunately, as lawyers we tend to see the delinquencies of our opposing counsel as opportunities for success, rather than giving rise to a duty to protect. Assuming Preema’s lawyer was paid with sexual services, we have no specific rule prohibiting such conduct because a State Bar of Texas membership referendum voted to reject the no-sex-with-client proposed rule in 2011.5 Furthermore, without clear evidence to the contrary, it is possible that the lawyer was Preema’s client prior to legal representation; in fact, his knowledge and acceptance of her trade may be the reason she hired him in the first place. Comment 13 to Rule 1.06 provides further guidance: … Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer’s relationship with the client … the functions being performed by the lawyer, the likelihood that actual conflict will arise, and the likely prejudice to the client from the conflict if it does arise. The question is often one of proximity and degree.6 Preema has an expectation that her sexual services— illegal under current law—will not be disclosed incidental to her attorney relationship.7 In addition, it is perfectly legal for a lawyer to barter and accept the services of a client in satisfaction of the lawyer’s fees.8 The prudent lawyer will understand, however, that sexual relationships outside of marriage are often rife with conflict. When a conflict of interest arises such that representation of the client is adversely limited by the lawyer’s own interests, then Texas Rules of Professional Conduct require that the lawyer decline or withdraw from representation.9 Therefore, a sexual relationship with a client, although not per se unethical, should be undertaken only with mutual understanding—preferably in writing—that if an irreconcilable conflict is created by the sexual relationship, the lawyer will withdraw from the legal representation. In 2002, the American Bar Association passed a flat ban against lawyer-client sexual relationships that occur after the legal representation begins.10 As of 2011, 28 states had adopted this ban.11 Four other states adopted a modified approach, finding that a sexual relationship with a client creates a rebuttable presumption of unethical conduct when it causes the lawyer to render incompetent services.12 Along with the stories of women being forced to engage in unwanted sexual relationships with their lawyers13 are stories of jilted lovers filing grievances against their lawyerlover to exact revenge.14 The lawyer who takes on the representation of a lover may soon find the legal relationship burdensome and difficult to end.15 Lawyers violate the public trust by sexually abusing the client. When these situations occur there is one successful cause of action that the client can bring: breach of fiduciary duty. But suits against consensual lawyer-lovers based upon fraud or intentional infliction of emotional distress are difficult to prove and may be barred as a matter of law. In the case of Gaspard v. Beadle,16 the lawyer had an extended affair with the client during representation in a usury matter and did not bill the client. When the affair ended, the lawyer sent the former client-lover a bill for the legal services and then sued to collect. The former client-lover countersued. The court held that while the lawyer’s behavior was socially inappropriate, as a matter of law, the conduct was not so extreme and outrageous to constitute intentional infliction of emotional distress. Similarly, in the case of Kahlig v. Boyd, a lawyer representing a husband in a divorce matter had an affair with his client’s wife and, after a fee dispute, was sued by the former client for fraud. The court stated, “While we find Boyd’s private behavior during his professional representation of Kahlig abhorrent for a member of our profession,” … “the evidence is legally insufficient to support” the finding of fraud. The lesson from these two cases is to pay attention to your choice of action. Fraud is not found where the lawyer’s actions of non-disclosure are motivated simply by a desire to surreptitiously continue an affair for personal gratification. On the other hand, a grievance filed for violation of conflict of interest rules and a lawsuit based upon a breach of fiduciary duty have been successful. In the Texas case of Piro v. Sarofim,17 the lawyer had an affair with a client while representing her in a divorce. The jury found that the lawyer had violated his fiduciary duty when he engaged in an inappropriate “romantic” relationship that impaired the client’s ability to make rational decisions. Result? A fee forfeiture of $3 million. In Texas, we have some unique notions about sex and conflicts of interest. Almost every jurisdiction except the Lone Star State has found that a sexual relationship between a judge and an attorney who appears before him or her is a conflict of interest and undermines the integrity of the legal proceeding.18 Of all the courts in the country to have considered the issue, only the Texas Court of Criminal Appeals has failed to recognize this imperative.19 In the 2009 Texas death penalty case of Charles Dean Hood v. The State of Texas, attorneys filed a TRCP Rule 202 civil discovery suit to take the depositions of the former Collin County judge and prosecutor whose prior affair had been kept secret during the capital murder trial in 1990.20 Upon finally documenting the extra-marital sexual relationship between the judge and prosecutor 18 years later, Hood filed his ninth appeal based upon judicial bias and denial of due process. The U.S. Supreme Court dismissed the appeal on Texas’s procedural filing deadline grounds.21 The merits of the case were never considered. Did Texas courts uphold justice or uphold a conviction? Practice tip: serve interrogatory requesting disclosure of personal relationships between the opposing party, including their attorneys, and any other party, lawyer, judge, or witness to the case.22 Lawyers should strive to remember tenents of the U.S. Constitution: “… The ordinary administration of criminal and civil justice” is the “great cement of society,” and “contributes, more than any other circumstance, to impressing upon the minds of the people, affection, esteem, and reverence towards the government.”23 NOTES 1. Texas Disciplinary Rules of Professional Conduct - Tex. Gov’t Code Ann. tit. 2, subtit. G, app. A (Vernon 2005 & Supp. 2007) - Rule 1.06 (b) (2), Comment 17 - Conflict Charged by an Opposing Party. Rules available online: http://www.law.uh.edu/Libraries/ethics/rulesofdisciplinaryprocedure/012004.pdf. 2. Preamble: Scope, to the Texas Disciplinary Rules of Professional Conduct, supra. – No. 11. 3. Id. – No. 16. 4. The Texas Lawyer’s Creed - A Mandate For Professionalism, Promulgated by the Supreme Court of Texas and the Court of Criminal Appeals, Nov. 7, 1989. 5. State Bar of Texas Referendum 2011 Results, 74 Tex. B.J. 195 (2011). 6. Texas Disciplinary Rules of Professional Conduct - 1.06 (b) (2) Comments – Nonlitigation Conflict Situations. 7. Preamble, supra. 8. Bartering in a one-on-one situation has been practiced throughout history and has been and remains ethically permissible for attorneys. Texas Ethics Opinion, No. 410 - January 1984. 9. Texas Disciplinary Rules of Professional Conduct - Rule 1.06 (b): A Lawyer shall not represent a person, if the representation of that person: … (2) Reasonably appears to be or becomes adversely limited … by the lawyer’s own interests. (c) A lawyer may represent a client if: (1) The lawyer reasonably believes the representation of the client will not be materially affected; and (2) The client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (e) If a lawyer has accepted representation in violation of this Rule … the lawyer shall promptly withdraw … (f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer while a member or associated with that lawyer’s firm may engage in that conduct. 10. American Bar Association Model Rules of Professional Conduct, Rule 1.8 (j) - Conflict of Interest: Current Clients: Specific Rules (1983 amended 2002) 28 States follow ABA flat ban – “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” 11. Moss, Frederick, Lover vs. Lawyer: The Sex with Clients Debate in Texas, footnote 45, (April 7, 2011). 12. Id. 13. See Anthony E. Davis & Judith Grimaldi, Sexual Confusion: Attorney-Client Sex and the Need for a Clear Ethical Rule, 7 Notre Dame J.L. Ethics and Pub. Pol’y, 57, 66 (1993). 14. Herrscher, William – interview with presentation attendee, Feb. 14, 2014. 15. Herrscher, William – interview with psychologist Jim Dolan, Feb. 12, 2014. 16. Gaspard v. Beadle, 36 S.W.3d 229 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). 17. Piro v. Sarofim, No. 01-00-398-CV (Tex. App.—Houston [1st Dist.] April 11, 2002). 18. See Charles Dean Hood v.The State Of Texas - No. 09-8610 (Supreme Court of the United States) - Brief Of 30 Leading Ethicists as Amici Curiae In Support of the Petitioner, p. 16 citing, People v. Biddle, 180 P.3d 461, 463, 465 (Colo. 2007) (threeyear suspension for judge who engaged in, and later attempted to dispel unconfirmed rumors of, an affair with a deputy district attorney who appeared before him); In re Adams, 932 So.2d 1025, 1028 (Fla. 2006) (public reprimand for judge who entered into a romantic relationship with a lawyer who practiced before him); In re Gerard, 631 N.W.2d 271, 280 (Iowa 2001) (60-day suspension without judicial pay for judge who had a secret intimate relationship with a county attorney who daily appeared before him); In re Chrzanowski, 636 N.W.2d 758, 771 (Mich. 2001) (one-year suspension without pay for judge who appointed attorney with whom she was intimately involved to 56 cases without disclosing the relationship and later denied the affair); United States v. Berman, 28 M.J. 615 (1989) (U.S. Air Force Court of Military Review disqualified judge who had an intimate relationship with prosecuting attorney from six trials, holding “the totality of [the judge’s] relationship with [the prosecuting attorney] creates an indelible appearance of partiality that legal arguments will not wash away.”); In re DiBlasi, Determination (N.Y. State Comm’n on Judicial Conduct, Nov. 19, 2001) available at http://www.scjc.state.ny.us/Determinations/D/diblasi.htm (finding judge’s impartiality suspect when he presided over 10 cases brought by an attorney with whom he was intimately involved); In re Bogutz & Gordon PC v. Carondolet Health Network, No. C2001-0922, 2002 WL 33966260, *4 (Ariz. Super. Dec. 16, 2002) (Trial Order) (granting plaintiff’s motion for new trial where trial judge had an undisclosed close personal relationship with defense counsel 20 years in the past). See also Commonwealth v. Croken, 733 N.E.2d 1005, 1011 (Mass. 2000) (ordering investigation of non-marital intimate relationship between a prosecutor and defense attorney). 19. See Ex Parte Charles Dean Hood, NO. WR-41,168-11 (Texas Court of Criminal Appeals) dissenting opinion, Sept. 16, 2009, opinion available at http://www.cca.courts.state.tx.us/opinions/HTMLopinionInfo.asp?opinionid=18739. 20. Ex Parte Charles Dean Hood - Cause No. W296-80233-90 In the 366th District Court Collin County, Texas. 21. Charles Dean Hood v.The State Of Texas, No. 09-8610 (U.S.) – Petition Denied, April 19, 2010. Docket available at http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-8610.htm. 22. e.g., Identify any and all personal or intimate relationships between you or your lawyers and any other party, lawyer, judge, or witness in the case. This request specifically includes, but is not limited to, friendships, partnerships, co-worker relationships, business ownerships, sexual relations, contractual relationships, financial support, contributions, donations, and scholarships. As to each such relationship, identify the persons involved, type of relationship (see examples above), date it began, brief description to identify the substance and purpose of the relationship or payment, and date it ended or whether it is ongoing. 23. Hamilton, Alexander - The Federalist, No. 17. WILLIAM HERRSCHER is a solo practitioner and civil litigation attorney with 24 years of experience practicing in Dallas. He focuses his practice in consumer and business litigation and is the past chair of the District 1A Grievance Committee.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Love+for+Trade/1750089/215648/article.html.