JUST WHOM DO YOU REPRESENT?
January 17, 2012 § Leave a comment
Consider this scenario …
You have represented Betty Sue in several matters, including a contentious divorce, contempts, and closing on her new home. Betty Sue was so satisfied that you have ended up doing legal work for many of her family and friends. She has been quite the bonanza in terms of clientelle. One day she comes into your office with her ex and asks you to do an agreed modification so that Junior can go live with his dad in Simpson County to play football. You draft a joint petition and an agreed judgment, have everyone sign off, present it to the chancellor, and Voila! Another minor miracle to impress Betty Sue and her wide circle of family and friends.
As often happens, though, things fall apart. Junior gets into trouble and is kicked off of the football team. He is not getting along with dad, and he decides he wants to return to mom. Dad refuses. Betty Sue returns once again to your office, and you take a retainer, prep pleadings, and file for modification, fully expecting another feather in your cap. So far so good. Until …
In the mail comes a motion to disqualify you in the case on the basis that you represented both parties in that joint motion and agreed judgment. You dig up the file and to your dismay you see that nowhere on the pleading or the judgment is it indicated that you represented Betty Sue alone. The chancellor sees it the other side’s way, and you are out on your ear. Betty Sue and her family, being country folk who don’t have time for subtleties and nuances, feel that you are dropping her and maybe even have gotten in league with her ex. Ouch. To try to make amends you refund Betty Sue’s retainer so she can hire another attorney. But the damage is done.
The problem could have been avoided if you had simply included a paragraph in the pleading that spelled out that you represent Betty Sue alone in the modification, that you have given no legal advice to the ex, and that he signifies by signing that he understands that he may consult with any attorney of his choice; you should also have spelled out at your signature line “Attorney for Betty Sue _____ only,” and added pro se, after the ex’s name. That would have been plenty for the chancellor to refuse to disqualify you.
The same principle applies any time the other party is unrepresented. Be especially aware when you have a joint complaint for irreconcilable differences (ID) divorce that, since it is unethical for an attorney to represent both parties in an ID divorce, your pleading must spell out which party you represent.
And always, in your property settlement agreement (PSA), add a paragraph identifying which spouse you represent, that you have provided the unrepresented party no advice, and that the unrepresented party has had the opportunity to confer with the attorney of his or her choice. That way, when the pro se party signs the PSA, future quibbling over who you represented is effectively sealed off.
Another source of confusion over who represents whom arises in minor’s settlements. Insurance companies often hire attorneys to file the petition and have it approved by the court. Too often, though, that petition does not specify whom the attorney represents. It would seem to be a simple matter for some language like that set out above to be included in the petition and even in the judgment approving the settlement. Leaving the point ambiguous would seem to be an invitation to a fly-specking attorney to try later to get the settlement set aside. If you would like to read about how and why that might happen, check out Carpenter v. Berry, et al.
Finally, confusion over who represents whom can arise when a lawyer lets his or her name slip into the court file. That happened in my court recently when a lawyer showed up in response to an MRCP 81 summons and allowed as how she “might be hired to represent the respondent,” and signed off on an agreed order resetting the hearing. She later tried to take the position that she had never been hired and so was not in the case. Sorry, but she is in the case until the judge signs an order letting her out. Another post on when appearances can lock you into a case is here.
PROPOSED RULE CHANGES THAT MAY AFFECT YOU
August 17, 2010 § 10 Comments
The Mississippi Supreme Court is considering two rule changes, one of which will definitely affect you, and the other might indirectly.
The first is a change to Rule 6.1 of the Rules of Professional Conduct that would make pro bono service mandatory and would increase the fee to be paid in lieu of doing pro bono work from $200 to $500.
The second is a change to the appellate rules to increase the pro hac vice admissions fees from $200 to $500.
Your comments are invited by the Supreme Court, and may be submitted via this link.
If you don’t care what I think about these measures, stop reading here.
My opinion is that it is a good thing to make some level of pro bono service a professional requirement. And no, I am not talking about the deadbeat clients who will not pay their fees and are losses on your books. I am talking about the deliberate decision to volunteer through the Mississippi Pro Bono Project or to give your services free to a needy litigant or non-profit who needs legal help and legitimately can not pay. The numbers of pro se litigants are growing every day; if you don’t believe me, ask any Chancery Clerk or judge. Every time I ask a pro se litigant why they did not get an attorney, the answer is the same: “I can’t afford a lawyer.” Mandatory pro bono attacks the problem at its source by providing access to a lawyer, which in turn means access to court, to people who otherwise would not have it. And I am not talking about taking on an anti-trust suit or the like. You can do a couple of simple no-fault divorces and do a lot of good, both for the client and for the court. (Side note … I have a blog post coming about the dimensions of the pro se problem and one approach to solving it).
As for the $500, I think the practical effect will be that a lot of solo and small-firm practitioners and small-town lawyers will end up doing pro bono work, and a lot of high-powered and big-city lawyers will buy their way out of their duty. On one level, I find it repulsive that it would work that way because it’s not fair to lawyers of modest means, and it’s repugnant to think that one can meet a professional and what I consider a moral obligation with filthy lucre. On another, more practical level, you have to admit that even if there were no “buyout” provison, and every lawyer were required to do pro bono, there would be lawyers of means who would shuffle their duty off on a subordinate. In that case, we might as well reap their money and do something worthwhile with it. And before you ask me, I do not know what the Supreme Court is doing with that money.
As for the fee for pro hac vice lawyers, I would not mind seeing it doubled, tripled or increased by ten or more. If there is litigation in Mississippi, out-of-state attorneys should have an incentive to turn it over to Mississippi lawyers. Too often the out-of-state lawyer pays the Mississippi attorney a pittance to be a figurehead, reaps the gold and scoots. I would like to see that pattern reversed.
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