February 2000
LAWYERS IN LOVE
By Constance V. Vecchione
For this special Valentine’s Day edition of the Bar Overseer column, and
with a nod to Jackson Browne, we address the issue of lawyers in love—with other
lawyers. Although this is an advice column, Bar Counsel should never
be mistaken for Ann Landers and we limit our suggestions to ethics and disciplinary
issues, not couples counseling.
The problem created by lawyers’ relationships with other lawyers has been
much in the news recently because of an Appeals Court decision, Commonwealth
v. Croken, 48 Mass. App. Ct. 32 (1999), remanding the case to the Superior
Court for an evidentiary hearing on the defendant’s motion for post-conviction
relief. The basis for the remand was the defendant’s claim that his defense
counsel at trial was involved in an intimate relationship with an assistant
district attorney in the county where the criminal case was tried and that the
relationship had not been disclosed to the defendant. The Appeals Court found
inadequate the Commonwealth’s explanation that the ADA had no connection or
involvement in the prosecution of the defendant.
The events underlying Croken occurred in the mid 1990’s, before
the SJC’s adoption of the Massachusetts Rules of Professional Conduct in 1998.
The applicable disciplinary rule thus would have been DR 5-101:
Except with the consent of his client after full disclosure, a lawyer shall
not accept employment if the exercise of his professional judgment on behalf
of his client will be or reasonably may be affected by his own financial, business,
property, or personal interests.
The Appeals Court, while not mentioning DR 5-101, does cite to the Restatement
(Third) of the Law Governing Lawyers, to similar effect, in support of its position
that disclosure by defense counsel was required.
Interestingly, however, the Appeals Court decision does not mention Mass.
R. Prof. C. 1.8(i), in effect since 1998, which specifies when a lawyer is required
to disclose a relationship with opposing counsel—and which is identical to ABA
Model Rule 1.8(i), in effect since 1983. Mass. R. Prof. C. 1.8(i) reads as follows:
A lawyer related to another lawyer as parent, child,
sibling, or spouse shall not represent a client in a representation directly
adverse to a person whom the lawyer knows
is represented by the other lawyer except upon consent by the client after consultation
regarding the relationship.
The Comment to the rule then goes on to say that "...The disqualification
stated in paragraph (i) is personal and is not imputed to members of firms with
whom the lawyers are associated."
The justification for Rule 1.8(i) is the protection of those twin towers
of professional responsibility, client confidentiality and client loyalty. The
idea is that close family relationship with an opposing counsel, be it that
of spouse, sibling, parent or child, presents these issues and that the potential
conflicts should be fully explained in advance, allowing the client to decide
if the representation should continue.
There was no claim of an actual conflict or other violation in Croken.
If Mass. R. Prof. C. 1.8(i) is the standard, then defense counsel in a situation
like that in Croken would not be required to make disclosure of his alleged
relationship with the assistant district attorney on two counts: first, he was
not related to her as parent, child, sibling, or spouse and, second, she was
not involved in the prosecution of the criminal case at issue.
In June of 1988, former Bar Counsel (now Judge) Daniel Klubock in a column
for Lawyers Weekly called "Of ‘Adam’s Rib’ and ‘L.A. Law’:
Lawyers as Lovers," presciently pointed out that "[t]he major problem
with [ABA Model] Rule 1.8(i) is that it fails to consider the realities of the
modern world, where a variety of relationships short of marriage can present
conflicts similar to (and some in addition to) those presented by the marriage
relationship. The Tracy-Hepburn real-life relationship, like the Kuzak-van Owen
fictional one in ‘L.A. Law,’ can be the most troublesome." The article
cites a California case, People v. Jackson, 167 Cal. App. 3d 829 (1985),
where a conviction was reversed when the defendant learned after trial that
his defense counsel and the prosecutor were involved in an ongoing dating relationship.
Of course, and as the Appeals Court decision in Croken may imply,
Rule 1.8(i) is not necessarily the end of the analysis. Rule 1.7(b), which is
similar in this respect to the old DR 5-101, may also be applicable. Rule 1.7(b)
states that
A lawyer shall not represent a client if the representation of that
client may be materially limited by the lawyer's responsibilities to another
client or to a third person, or by the lawyer's own
interests, unless:
(1) the lawyer reasonably believes
the representation will not be adversely affected; and
(2) the client consents after consultation.....
Bar Counsel in a disciplinary matter raising facts akin (sorry) to those in
People v. Jackson, or a similar situation in a civil case, might well
argue that Rule 1.7(b) had been violated. Lawyers who are not related but
are personally involved with opposing counsel must make the same types of disclosures
required by Mass. R. Prof. C. 1.8(i)—and all lawyers, related or not, who are
involved with opposing counsel must also reasonably believe that the representation
will not be adversely affected by the relationship.
In sum, there are several lessons that can be drawn from the Croken
decision. First, at least by implication, it reemphasizes the obvious fact
that discipline and disqualification are two different matters. For example,
while Bar Counsel is unlikely to discipline an imputed potential conflict in
these types of circumstances, courts obviously may decide to disqualify or to
reverse on appeal.
The second lesson, related to the first, is that disclosure (preferably
in writing) of family and other relationships, however attenuated, is always
the better course even in situations where it seemingly is not required by Mass.
R. Prof. C. 1.8(i) or 1.7(b). Common sense dictates that the client is likely
to react badly if he learns of the relationship from someone other than the
lawyer. On the other hand, an upfront disclosure might well result in a waiver
by the client, even after it is impressed upon the client that the relationship
does not mean that the client will get a break!
Also, even if discipline is not the issue, disclosure may nonetheless avoid
disqualification or reversal. Especially in situations where the alleged conflict
is imputed, not personal, a court will be less likely to disqualify or reverse
if the client was fully informed that the lawyer is involved with a lawyer employed
by opposing counsel, or that an associate of the lawyer is involved with opposing
counsel, or that an associate of the lawyer is involved with an associate of
opposing counsel, or even that a lawyer is involved with a nonlawyer employee
of opposing counsel—in other words, any relationship which raises issues of
loyalty to the client.
The flip side, of course, is that the lawyer may be in a relationship that
he or she doesn’t want known. While the attorney’s right to privacy should be
respected, it may be that the wiser choice in such situations is to decline
the representation.
Finally, and very importantly, compliance with Mass. R. Prof. C. 1.8(i)
only protects lawyers from discipline where the conflict is theoretical. If
an actual conflict or breach of confidentiality develops, the attorney could
still be disciplined regardless of the client’s original consent.
Happy Valentine’s Day!
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