Paying Attention
November 1, 2016 § 8 Comments
Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):
You: I would like a small number one combo to go; hold the cheese and onions.
Wendy: Number one combo. Here or to go?
You: To go. And did you get the no cheese and onions?
Wendy: Number one combo. Large or small?
You: Uh, small. And no cheese and onions, right?
Wendy: You want no cheese and onions?
You: Right. No cheese and onions.
Wendy: Number one combo. No cheese and onions. Small. Here or to go?
[If you weren’t paying close attention, you might want to read through that again slowly]
When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.
Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.
And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.
This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.
Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.
It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.
But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.
Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.
Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.
Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.
Ethics in Action
September 30, 2016 § 1 Comment
Ethical rules are clear in an academic context. Anyone who has practiced law, however, will tell you that applying them in the day-to-day scrum can be devilishly difficult.
For instance: You have discovered that, in a will you had prepared some time before your client’s death, you omitted one of his children whom he intended to be a beneficiary, and neither you nor he caught the omission. Now you are being called upon to probate the will, and you realize your oversight. What do you do?
A reader sent me this:
Attorney Parker Clifton was retained by Frank Henry to prepare estate planning documents. Clifton inadvertently omitted one of Henry’s daughters as a child on the first page of a pour-over will. The omission did not have any effect on the dispositive provisions of the document. At Henry’s death, Clifton was retained to probate the will. Before filing the document with the probate court, Clifton altered the first page to correct the error. After questioning by the daughter about the alteration, Clifton withdrew as counsel and self-reported his conduct.
The Ohio Board of Professional Conduct concluded that Clifton had violated Ohio R. Prof. Conduct 3.3(a)(1) (knowingly making a false statement of law or fact to a tribunal) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). Based on these violations, and considering mitigating factors such as a lack of prior discipline and Clifton’s self-reporting, the Ohio Supreme Court adopted the Board’s recommendation and issued a public reprimand.
Warren Cty. Bar Assn. v. Clifton, 2016 WL 4553838 (Ohio Sept. 1, 2016).
I invite your comments on how you would have addressed this situation.
Did Mr. Clifton really have to do anything, in light of the fact that, ” … The omission did not have any effect on the dispositive provisions of the document” ? The omission was “on the first page” of the will; we don’t know whether the missing name appeared elsewhere in the document.
If she were completely omitted and the testator had intended for her to be included, that would be a major problem. Otherwise, mere failure to name her in one paragraph would probably be inconsequential if she were identified elsewhere in the document.
Here, Mr. Clifton’s sin was in the alteration of the document and the initial dishonesty. Had he acknowledged the error and then had withdrawn and offered himself as a witness to the true facts, we would not be reading about him here.
This is the kind of thing that haunts lawyers sitting alone in their offices, confronted with a simple mistake that could have far-reaching implications that could reach into the lawyer’s wallet.
__________________
Thanks to Attorney Hale Freeland
How Low Can We Go?
September 9, 2016 § 2 Comments
This from the online ABA Journal …
Two more lawyers are permanently disbarred for DUI setup of opposing counsel
POSTED AUG 26, 2016 10:39 AM CDT
BY DEBRA CASSENS WEISS
The Florida Supreme Court has permanently disbarred two Tampa lawyers for setting up their opposing counsel for a DUI arrest in the middle of a trial.
The court disbarred Robert Adams and Adam Filthaut on Thursday, saying their actions were “among the most shocking, unethical and unprofessional” that the court had ever witnessed. The Daily Business Review (sub. req.), the Tampa Bay Times and the Legal Profession Blog have stories. The decision is here (PDF).
Adams and Filthaut had argued any disbarment should not be permanent. A third lawyer involved in the setup, Stephen Diaco, was permanently disbarred in January after dropping his appeal.
The lawyers were accused of sending a paralegal to a Tampa steakhouse where the opposing lawyer was having drinks. The flirtatious paralegal seated herself next to the opposing lawyer and later persuaded him to drive her car, resulting in his arrest by a waiting police officer. The targeted lawyer had originally planned to walk home to his nearby apartment.
The court said the actions of the disbarred lawyers “constituted a deliberate and malicious effort to place a heavy finger on the scales of justice for the sole benefit of themselves and their client.”
Filthaut’s lawyer, Mark O’Brien, told the Daily Business Review that his client “is obviously very disappointed, but he has moved on and is actually very happy in his current endeavors.” Filthaut now runs an auto-glass business.
The headline reads “Two more lawyers …” as if this is the latest in a developing Zika-like epidemic. I know it refers to the two latest in addition to the one who dropped his appeal. Still, as unsettling as this story is, it’s scary to think it could be replicated anywhere else.
As I said earlier in the week, stories like this make it hard to defend the profession.
A Saga of Bad Behavior
September 8, 2016 § 1 Comment
Every attorney I know bridles when the conversation turns to questioning the general honesty of lawyers. We tend to get indignant and insist that ours is an honorable profession.
It is. Certainly. Yet some of our colleagues do things that tar all of us.
Consider what happened in the case of Newton v. Brown, et al., decided by the COA May 24, 2016. The case at the trial level involved dissolution of a two medical partnerships; one to purchase a building and parking lot, and the other to operate a medical clinic out of the purchased building. The partners were Drs. Brown and Matthews. When Matthews was convicted of failing to file tax returns, they began the process of dissolution. Each engaged the services of a lawyer to represent him. The dissolution involved exchanges of payments, deeds, and instruments. Brown was to buy out Matthews’ interest in the property and clinic.
Brown’s attorney handled the property transaction. He was given a check payable to the Mississippi State Tax Commission to satisfy its lien against the partnership property. At ¶8, Judge Griffis describes how Brown’s attorney handled his share of the responsibilities:
- He did not forward the check to the tax commission;
- He incorrectly drafted the quitclaim deed from Matthews to Brown by omitting the parking lot;
- He failed to record the quitclaim deed, and to compound the calamity …
- He lost the deed;
- He did not find or disclose a judgment lien on the property at the time of conveyance, which caused mischief later.
As head-shaking as is all of that, it just does not hold a candle to the conduct of Matthews’ attorney. Since Matthews at that time was already incarcerated, his attorney proceeded to collect the money due the doctor. The attorney visited Blakeslee, a CPA for the partnership. Blakeslee had two checks payable to the attorney as representative for the jailed doctor: one, a Hancock Bank check for more than $55,000 for the doctor’s share of the partnership’s liquid assets; and another, drawn on on an A.G. Edwards account, in the amount of more than $49,000 for the doctor’s share of the cash surrender of a whole-life insurance policy.
When Blakeslee left the room for a moment, the attorney took the checks, a folder, and some papers from Blakeslee’s desk and put them in his car. Blakeslee demanded return of the checks because Brown wanted to retain the money to offset the lien that he had belatedly discovered after he bought the property from Matthews. Newton refused, and negotiated the Hancock Bank check. He attempted unsuccessfully to negotiate the A.G. Edwards check.
Brown got an injunction and pursued a conversion action against the lawyer. You can read about how it turned out at the link above.
My interest in this case is the behavior of the attorneys:
On one hand, we see an attorney who committed compound blunders in handling the land transaction. Blunders that cost his client some serious money, and are continuing to do so.
On the other hand, we have what Judge Griffis characterized as “egregious behavior” by the attorney who took the checks without authorization and refused to return them. Egregious indeed.
These are the kinds of behaviors that make our words ring hollow when we try to defend the profession.
Week before last, I sat down with some entering law school students and discussed with them the gravity of the honor and dignity of the profession, and how the public places immense trust in our hands. We pondered some case studies involving ethical and professionalism considerations. It was gratifying to see their almost instinctual grasp of what is right and wrong, of what is to be expected of them when they are admitted to practice. I hope they avoid blunders and “egregious behavior” when their time comes.
When Excusable Neglect Isn’t
August 8, 2016 § Leave a comment
We discussed here before the concept of excusable neglect and how it can be a trap for the unwary. You can read about it at this link.
In that case, Nunnery v. Nunnery, the COA upheld a chancellor’s decision that the concept of excusable neglect did not excuse an untimely appeal and other actions that could have kept the case viable, even in the face of some extreme, and emotional, facts.
Later, in early 2016, we noted here that the MSSC had granted cert.
Now the MSSC has spoken, and its decision in Nunnery v. Nunnery, handed down July 21, 2016, affirms the COA and the trial court in a 4-3-2 decision. The gist of the majority decision, written by Justice Coleman, is this:
¶15. An excusable-neglect determination “is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 397 (1993). The Pioneer Court then adopted the following four-part, excusable-neglect test: (1) “the danger of prejudice to the [non movant],” (2) “the length of the delay and its potential impact on judicial proceedings,” (3) “the reason for the delay, including whether it was within the reasonable control of the movant, and” (4) “whether the movant acted in good faith.” Pioneer Inv. Serv. Co., 507 U.S. at 395.
The decision goes on to note the many cases in which the 4-prong Pioneer test has been applied in the federal courts, and concludes, ” … and we hold that it is an appropriate guide for our courts.”
The court went on to analyze the chancellor’s ruling and concluded that she had considered the four Pioneer factors, that her findings were supported by the evidence in the record, and that there was no abuse of discretion. Thus, affirmance.
The dissent did its own analysis of the record and reached a contrary result, essentially substituting its judgment for the trial judge’s.
One aspect of the case at the trial level was that there was a 15-month delay between the filing of a R59 motion and its disposal by the court. The delay was due to the fact that the defendants-movants never called it for hearing. The dissent blamed the plaintiffs, charging that they should have called it up themselves to mitigate the delay. The majority addressed that this way:
¶20. We pause before closing to address the dissent’s striking assertion that the fifteen month delay caused by the defendants’ failure to seek a ruling on their motion for a new trial should actually be weighed against the plaintiffs. (Dis. Op. at ¶ 37). The dissent would hold that the delay shows the plaintiffs were not prejudiced because, if they were being prejudiced, surely they would have sought a ruling on the motion themselves. Mississippi law and practice clearly put the onus on the movant to obtain a ruling on a pending motion. Billiot v. State, 454 So. 2d 445, 456 (Miss. 1984). We cannot effectively agree to penalize parties who had no reason to know they were responsible for calling up the opposing party’s motion and, that because they did not do so, will face the Court using against them a failure that belongs squarely at the feet of their opponents.
The cautionary tale here is that “Excusable neglect” can be a velvet trap: attractive yet fraught with peril. You mustn’t view it as the one-size-fits-all escape hatch whereby your local chancellor will save you from your oversights. On the contrary, when applied properly, it is an equitable analysis in which the court must weigh the prejudice to and interest of the opposing party, judicial economy and delay, the reasons for the delay, and the operation of good faith.
Five Sure-fire Ways to P*** off Your Chancellor
June 2, 2016 § Leave a comment
It should go without saying that chancellors have god-like powers over your cases, and it behooves you (and your client) to respect those powers when it comes to interactions with the court.
There are some irascible chancellors, I will grant you. But in my experience the great majority are sympathetic, patient, focused on doing the right thing the right way, and interested in improving practice in their courts.
So, whether you are dealing with a splenetic judge or one with the disposition of Saint Teresa, you want to be sure you avoid behaviors that will be sure to get you on the chancellor’s bad side.
Here are my top five:
5. Being chronically late for court. Everyone has occasional emergencies that affect the ability to be on time, but when it’s chronic, it’s an annoyance beyond measure. Your judge may have a higher pain threshold than I, but to me being late merely because you’re late is an ultimate insult not only to the judge, but also to everyone else involved in the case. It communicates that you consider yourself more important than anyone else awaiting your arrival, and I assure you that, in that situation, you will be the only one there who agrees with your opinion. If you find yourself being late more than on rare occasions, you’d best do some rearranging of your priorities and your ways of doing business.
4. Not learning from your mistakes. It gets tiresome having to deal with the same lawyers making the same mistakes over and over, such as late and incomplete accountings, improper process, failure to comply with discovery orders, and failure to present orders after being ordered to do so, to name only a few. It’s not the judge’s job to pull your irons out of the fire. And if it’s a contested case, it would be improper for the judge to aid one side or the other. If this is your problem, don’t be surprised if one day the judge loses patience, throws her hands up, and says, in effect, get your own self out of this mess; I’m not doing it any more.
3. Being unprepared. You have to ask the court to delay your divorce or modification hearing to give you time to throw together an 8.05. Or you try to convince the judge to take a particular position, but you don’t have any case law to cite because you haven’t done a lick of research. Or you have to ask for a continuance because your pleadings are not in order. Or you neglected to tell your client to be there for court. These are not only symptoms of unpreparedness; they also indicate lack of competence. Once you convince the judge that you are unprepared and/or incompetent, you can expect that everything you do will be carefully scrutinized, slowing down your ability to get things done for your clients.
2. Being disrespectful. We all have bad days in court. Those are compounded when the judge has one, too. No matter the outcome, it is your professional duty as a lawyer to suck it up, keep your thoughts to yourself, and show respect. Like a bell that can not be unrung, a snide or flip comment will continue to resonate with your judge long after you regretted saying it. Likewise, being disrespectful of opposing counsel, opposing party, witnesses, and anyone else involved will diminish you, and not the object of your disdain. Arrogance is a trait best left at your office.
1. Lying. This is the cardinal sin — the one that may earn you years of or even permanent distrust from your chancellor. Never lie even when the truth will hurt. If you’re in the wrong, admit it and ask the court’s indulgence. Lame excuses sound like lies and often are. If you find out that something you represented to the court turns out to be untrue, get with the judge as soon as possible to straighten it out.
Mopping Up After the Divorce
January 11, 2016 § 2 Comments
What do you do when the divorce trial is concluded, the final judgment has been entered, and the post-trial motions have been disposed of? If there’s not going to be an appeal, you just make sure your bill is paid, shake your client’s hand, usher him to the door, wish him luck, say farewell, and shut the door behind him, right?
Well, not exactly.
Do you know whether your client still has his ex-wife named in his will? What about as beneficiary of his life insurance, or survivor on his IRA or 401(k)? Does he still have his ex as POD or survivor on any checking or securities accounts?
I read an article written by a financial advisor recently in which she related an encounter with a newly-married couple, both of whom had been divorced several years before. Both husband and wife had wills that still named ex-spouses as beneficiaries, and the same with life insurance and retirement accounts. When she asked them why they had not been changed, both replied that no one had advised them that they should.
A case in my court recently brought up a similar problem. The wife in the divorce case insisted that she owned the marital residence because the PSA in her 2007 divorce (more than 8 years ago) provided that her ex would execute a special warranty deed conveying his interest to her. Only problem: he never did. So, since May of 2007 she has remained a joint tenant with right of survivorship with that man. If she had died before he tended to that little bit of finish-work, her estate would have to pay another lawyer to do what her divorce lawyer should have done in the first place, and it probably would have involved courtroom billable hours.
Years ago, a man hired me to obtain a QDRO to divide his 401(k) account. He had represented himself in the divorce that took place nearly ten years before. When the divorce was final, he had asked the lawyer who represented his wife how to go about getting the retirement account divided. The lawyer pointed out that he did not represent him, and virtually slammed the door in his face. When the client at last decided to get remarried, he thought that it was time to get the matter tended to, so he hired me. Here is how the PSA read:
The parties agree that wife shall receive the sum of $60,000 from Husband’s 401(k) account.
That was all it said. [For a post on what that 401(k) language should have included, click here]
So we filed a petition for the court to enter a QDRO for her to receive exactly that — $60,000. After being served with process, she went back to her divorce lawyer, who called me and pounded the table, insisting that she was entitled to ten years’ worth of interest. I pointed out that the agreement he had drafted did not have a time frame for payment, that neither party was obligated by the agreement to prepare a QDRO, that there was no interest provision, and that the only definite thing about it was the amount. He called me back a few days later and said his client was willing to settle for the $60,000, and they signed the QDRO, which was entered and the matter finalized. For ten years my client earned money using his ex’s money. Had her lawyer acted in her best interest, he would have gotten that QDRO entered immediately after the divorce judgment.
You might well ask, as I did when my client first hired me, why was his ex not screaming for her money? Well, in the ten years after the divorce she asked him about once a year if he still had her money. She was satisfied with his answers, but apparently no one ever advised her what she was losing by not getting that QDRO entered.
You might also inquire whether my client was unjustly enriched. I would agree that he was, indeed, enriched, but not unjustly so. He did not sleep on his rights. He did not draft the agreement. It was not his obligation to calculate her separate interest. She was wise to want to settle for the principal sim, because if she had wanted to obtain a court ruling that he had been unjustly enriched, and directing him to disgorge any interest received on her money, she would have had to pay the attorney to pursue it, and likely would have had to pay a CPA to calculate the interest and testify as an expert. After paying those folks, she would be lucky if she got to walk away with the $60,000.
Another nightmare scenario involves credit cards. I represented a man in a routine irreconcilable differences divorce. The PSA provided that each would pay the debts in his or her own name, as well as debts incurred in the name of or against the credit of the other. Thank goodness for that specific language, because he came in a year or so later with a letter from a credit card company reporting that an account in joint ownership was in default and making demand on him to pay more than $10,000. Turns out that shortly before the separation his wife had opened one of those accounts the company had solicited by mail, signing her husband’s name, and kept the account concealed from him. Then, after the divorce, she used it to supplement her income. We notified her that she had so many days to pay the account in full or we would sue. She borrowed money from her family, paid it off, and the account was closed. My client’s credit rating took a hit, but that and a modest legal fee were his total damages.
Lesson learned: it might not be a bad idea in the course of a divorce case to have your client run a credit check.
All of this boils down to a simple professional consideration that I have mentioned many times here: When the case is concluded, your client wants to be finally done with it, and she does not want to have to pay another attorney to clean up after you.
Actually, many of these things can be tended to before the divorce is concluded. That deed can be prepared, joint accounts closed, wills changed, bills of sale signed, agreed QDRO signed by the parties, and so on, with the originals held in the lawyer’s file until the judgment is entered.
When you are through with the divorce, help your client through the aftermath. Make sure she revokes all wills naming the ex as a beneficiary. Make sure there are no financial assets not covered by the divorce judgment that are joint, or have survivorship provisions. Make sure that there are no outstanding joint debts not addressed in the divorce. If a QDRO or deed is required for your client’s benefit, get it done ASAP. People are dying every day. You don’t want one of them to be the person you need to finish up your work.
What You Get to Decide as Attorney
November 24, 2015 § 3 Comments
Every now and then a lawyer will shrug his shoulders and say, “I filed it because that’s what my client told me to do.” Or, “I didn’t want that language in the agreement, Judge, but the client insisted.”
Things like that make me scratch my head and wonder what are today’s boundary lines between the lawyer’s authority and the client’s decision-making realm.
This article by Megan Zavieh on Lawyerist entitled Who Decides What in the Attorney-Client Relationship offers some helpful guidance.
I noticed that she specifically stated that, although the client gets to determine the goal, the attorney gets to decide the means. What happens, though, when the client’s objective is to drag out the litigation as long as possible with frivolous and vexatious motions, unnecessary and unnecessarily voluminous discovery, and to run up the cost to the opposing party to bleed them dry? Or what if the client’s sole objective is revenge by disclosing embarrassing information on the very periphery of relevance? These can be some tough choices for the attorney, especially when the client is willing to pay. How much of your reputation are you willing to spend for that fee?
When I represented clients, I made it clear that I would make the decisions about strategy and tactics, and I didn’t need the client’s helpful guidance in how to do that. In that way, I made sure that I was doing what I felt was ethical and was zealous representation within the bounds of the law. When clients, untrained in and unencumbered by ethical rules, begin calling those shots, you can find yourself in big trouble.
The Unanswered Divorce Complaint
July 21, 2015 § 14 Comments
You have filed a divorce complaint for your client and had the defendant personally served per MRCP 4. Intelligence from your client leads you to believe that the defendant will not participate, so you put the file away and let the thirty days tick down.
On the twenty-ninth day, you receive a handwritten letter from the defendant neither admitting nor denying the allegations of the complaint. The defendant filed a copy of the letter in the case with the Chancery Clerk. You set the case for trial and, exercising prudence, give notice to the defendant of the day and time. You are still convinced that there will be no opposition since no bona fide answer or counterclaim has been filed, and, as your client indicated, the defendant is not likely to participate. You think it best to forego the trouble and expense of discovery.
On the day appointed for trial, you appear with your client and a single corroborating witness. The defendant, however, is there waiting for you, accompanied by competent counsel and a dozen or so supportive witnesses. The defendant is insisting on going forward with a trial right then and there. What to do?
- Can the defendant present evidence contra the grounds for divorce, even though he did not file an answer? Yes, according Rawson v. Buta, 609 So.2d 426, 430-431 (Miss. 1992). The lack of an answer does not confess the allegations of the complaint per MRA 93-5-7. Because the allegations of the complaint are not taken as confessed, they always require adequate proof to sustain them, and the defendant may offer proof to rebut the plaintiff’s proof. The defendant may not, however, go outside the scope of the complaint, and may not put on proof supporting any affirmative relief.
- You should ask for a continuance — on the record — and explain to the judge in detail why you need one and what were the presumptions on which you based your lack of discovery and other preparations for a trial. Bring to the attention of the court your lack of notice that the defendant would be represented, and what effect that had on your readiness for trial.
- Don’t assume if you get your continuance that the 90 days for discovery per UCCR 1.10 has been extended. Ask for additional time and get a court order to that effect.
- Was it ethical for that other lawyer to sandbag you like he did? I don’t see a specific ethical provision that was expressly violated, but it just seems to violate the spirit of RPC 3.4, as well as the preamble to the RPC. That kind of conduct does not pass the smell test, and would more than likely tip the scales in your favor for a continuance. In my experience, it’s the kind of conduct that causes hard feelings among attorneys in small communities and should be avoided. Defendant’s lawyer should have notified you when he was retained, or at least he should have filed an entry of appearance in the case and served it on you.
- [Added after publication] As a last resort, you could just move to dismiss your client’s complaint per MRCP 41(a). That would stop this unpleasantness, but your client would have to start over, and there is an off-chance that she could be assessed some expenses of the defendant for showing up.
Playing with Dynamite
May 12, 2015 § 2 Comments
If a husband and wife came into your office and wanted you to represent them both in an ID divorce, what would you say? I think, and would hope, that the vast majority of us would decline on ethical grounds and offer to represent only one, not both.
How would it work, anyway, to represent both parties? You could put them in separate rooms and shuttle between. You could run to one room and advise the husband against agreeing to pay any alimony, and then run to another room and advise the wife to hold out until the husband agrees to alimony. Absurd? I’ll say.
Mississippi Rule of Professional Conduct (MRPC) 1.7 precludes representation of opposing parties in litigation unless certain conditions are met. Ethics Opinion number 80 of the Bar issued March 25, 1983, makes it clear that joint representation in an irreconcilable differences divorce is unethical:
The Committee is, therefore, of the opinion that the representation of both parties to a no-fault divorce violates the Rule 1.7, MRPC, and that it is, therefore, unethical for a lawyer to undertake such multiple representation.
How to handle it is set out in this language of the Opinion:
There is nothing wrong at all with one of the parties to a No-Fault Divorce being without an attorney, so long as that party, either H or W is properly informed by the spouse’s attorney that (1) that party is not represented by the spouse’s attorney, (2) the spouse’s attorney will not undertake to advise that party on any aspect of the case as to his or her rights, and (3) that party has a right to obtain an attorney to advise him or her and to review any of the agreements, pleadings or decrees which will be prepared. See Rule 4.3, MRPC.
A recent COA case involved dual representation and a challenged outcome. Leta Collins and Kenneth Collins were divorced from each other in 2011. They had filed a joint complaint for divorce on the sole ground of irreconcilable differences. The pleading stated that “The parties together have been represented by [Name of the Attorney], and was signed by that attorney as “Counsel for Leta D. Collins and Kenneth J. Collins.” In the PSA, which was approved by the court, Leta relinquished all interest in Kenneth’s financial assets and retirement.
More than a year later, Leta discovered that she had not known of more than $500,000 in financial assets that Kenneth had at the time of the divorce. She filed a R60 motion, but she did not allege that a fraud had been committed. The chancellor denied the motion, and Leta appealed.
In the case of Collins v. Collins, decided May 5, 2015, the COA affirmed. Judge Fair wrote this for the court:
¶24. Leta argues that the marital property was not equitably distributed because she and Kenneth were represented by the same attorney during the divorce. She alleges that her lack of independent advice and counsel led her to sign the unfair PSA.
¶25. The joint complaint for divorce states “[t]he parties together have been represented by M. Chadwick Smith,” and it was signed by Smith as “attorney for” both parties. Leta testified she and Kenneth believed they were represented by the same attorney. Leta argues this was a direct violation of Mississippi Rule of Professional Conduct 1.7(a), which prohibits representation of “a client if the representation of that client will be directly adverse to another client,” unless certain conditions are met.
¶26. The chancellor addressed this issue in her findings from the bench, stating that
when Mr. Chadwick Smith came in with his document, the final decree, I inquired of him who he represented because the divorce had the words that Ms. Collins’[s] counsel very ably draws to attention, that he represented both. And he stated, “I only prepared the paperwork, Judge. That’s what it says on there, ‘Prepared by.’” Only after the assurances of Mr. Chad Smith did I accept the parties’ divorce, and I signed the same on the 8th day of June 2011. Thus the allegations that Ms. Collins seeks to present that Mr. Collins committed a fraud on this court are fundamentally vested against Mr. Chad Smith.
¶27. Leta testified that she was the one who had actually prepared the PSA, based on her prior divorce papers, with some contributions from Kenneth. Kenneth likewise testified that Smith did not make any decisions for them. As the chancellor found, if Smith violated the Rules of Professional Conduct by engaging in dual representation, it was not a sufficient basis to modify the divorce decree. This issue is without merit.
What saved the attorney here apparently was that the parties had specifically waived financial disclosures, and it was Leta, and not the lawyer, who prepared the PSA. Both parties acknowledged that the lawyer gave them no advice at all. It did not help Leta’s cause, if you read the rest of the opinion, that it took her a year and some months to seek the court’s assistance.
A few thoughts:
- Don’t let anything about the peculiar facts in this case mislead you into believing it’s ever okay to represent both parties in an ID divorce. It’s not. Ever. It’s unethical. And if it’s unethical, it can cost you professionally. Don’t do it. Ever.
- Any lawyer who states on a joint complaint for divorce that he represents both parties is asking for trouble. That in and of itself is a statement admitting an ethical violation.
- I must be getting old (and I admit I am), but I am seeing more and more of people with JD after their names taking the position that “I only drafted papers for the parties,” or “I simply typed and submitted what they gave me,” or “this is what the client insists on doing.” Whatever happened to lawyers (JD’s) as counselors at law? Have lawyers gone from being legal advisors and guides to being high-priced clerk-typists? What is the point of having a lawyer when anyone with a word-processing program and a laptop can produce pleadings and an agreement? What is the point of having a lawyer if it is not to obtain legal advice? This trend, particularly among young people with JD after their names troubles me greatly. Notice that I said “JD after their names” and not lawyers. Just because you have JD after your name does not make you a lawyer. What makes you a lawyer is representing, protecting, and looking after the legal interests of a client. If all you’re doing is being a paying customer’s stooge, or acting as their clerk-typist, all you are is a JD, not a lawyer.
- In this case, the parties themselves acquiesced in this awkward arrangement, which created an excuse for it under MRPC. Had they not, I think Ms. Collins had a legitimate beef, and maybe a viable lawsuit against their joint lawyer. But although it gets the lawyer out of this particular bind, I don’t think that the parties’ acquiescence can excuse this ethical breach. The lawyer, not the parties. has the higher duty and is ethically bound.
- If you ever draft a joint complaint, make doubly, triply sure that you make it clear which party you represent, and that you have not, and will not provide the unrepresented party with any legal advice, and that she has the right to have attorney advise him or her and to review any of the agreements, pleadings or decrees which will be prepared.
- Better yet: never, ever, ever, ever file a joint complaint for divorce on the ground of irreconcilable differences.
- And, for Pete’s sake, be an attorney and advise your client. That’s what you went to law school for.
- Play fast and loose with the ethical rules and you are playing with dynamite.
The Better Chancery Practice Blog 