A companion piece.

As I inch ever closer to my 400th blogpost here, today’s offering is something of a companion piece to a post I wrote almost exactly 13 months ago that demonstrates what should be an obvious point, what is a very important point in the world of disciplinary defense but much less obvious, and at least one highly curious one.

This post involves, Sherri Jefferson, a Georgia lawyer who has now been disbarred over what was largely the same sort of conduct that got the Pennsylvania lawyer in trouble who was the subject of that earlier post.

I’ll let the headline from The ABA Journal online article – which is what first caught my eye – explain: “Lawyer disbarred after she’s accused of having romantic involvement with client and hiring detective to spy on him.”

It’s a pretty good headline but it omits, as headlines sometimes must for space reasons, the important thing that happened between romance and spying – the client stopped being a client and started dating another woman. This paragraph of the disbarment order gives the expanded details but still in a pretty succinct fashion:

Jefferson represented an individual from 2008 to 2010 in a custody modification action; during the representation, Jefferson and that individual were romantically involved. This relationship led to the filing of a disciplinary matter against Jefferson, but the matter was subsequently dismissed by this Court in 2014. During the pendency of that disciplinary matter, Jefferson’s former client began dating another woman and, following the dismissal of that matter, Jefferson hired a private investigator to conduct an investigation including surreptitious surveillance of the former client, his son, and the other woman. Additionally, Jefferson falsely disparaged the other woman to the woman’s employer, including making false and misleading statements about the custody proceeding.

The important, and obvious, point here being that bad ethical conduct from lawyers driven by jealousy is not exclusively the province of male lawyers. Jefferson also did not make matters any better for herself thereafter by making a number of provably false statements during criminal proceedings that arose after criminal warrants for stalking and defamation were filed against her.

Jefferson also made a strategic decision in the defense of her disciplinary case that tees up discussion of the other important, but less obvious, point, she pled the Fifth.

Now, sometimes that truly is the best (if not the only) option when the conduct is also potentially criminal conduct, but it almost always has damning consequences on the disciplinary side. The order of disbarment discusses in a couple of footnotes how taking the Fifth justified an adverse inference that the disciplinary allegations were essentially true. (These were relegated to footnotes because, by being uncooperative in certain aspects of the proceedings, Jefferson also was the subject of a sanctions order that essentially acted as a default judgment against her.)

Although much ink has been spilled in the past about what it means for disciplinary cases to be “quasi-criminal” in nature when it comes to Fifth Amendment rights, as a practical matter the “quasi” always does more work in that description than “criminal” does and lawyers who sit in judgment of other lawyers tend not to hesitate to draw negative conclusions about a lawyer who invokes the Fifth Amendment in proceedings about lawyer discipline.

And the final point, injected into the mix purely for the curiosity factor is that she apparently has also attempted to draw parallels to how she has been treated to events occurring on the national stage in a way that, I’m just guessing, probably will not carry the kind of weight she thinks.

That same ABA Journal article concludes with a quote from her – that apparently is made in a filing Jefferson has made to seek to stay and vacate the order of disbarment — “Akin to the Russian probe, this case is marred by abuse of prosecutorial misconduct, abuse of discretion and acts of complete denial of due process.”

Akin to the Russian probe … sigh.

California offers opportunity for a word (or 1,000) on the topic of sex with clients.

So, many moons ago I wrote a post about the fact that California was working through the process of trying to overhaul its ethics rules.  I said I’d get back to that topic, but never really did.  So, today, I am.  Kind of.  But not really.

In the news within the last 24-36 hours are articles about a split of opinion on whether California’s proposed revised rules should follow the ABA Model Rules to impose a ban on lawyers having sex with clients.  You can check out the short ABA Journal online snippet here.  You can read the original article referenced here.

Here is how the ABA Model Rule, Rule 1.8(j) reads:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Pretty simple and straightforward admittedly.   At present, the articles explain that California rules only prohibit lawyers from coercing sex with a client or demanding sex in exchange for legal representation.  (That’s not really much to prohibit when you think about the fact that both such acts would already be prohibited under other ABA Model Rules.  For example, the latter essentially being prostitution and thus likely a violation of Model Rule 8.4(b).)

The news articles grab quotes and thoughts from lawyers on either side of the argument in California which mostly boil down to — the relationship between attorney and client is so close that the injection of sex into the mix will always result in imbalance v. consenting adults should be permitted to do as they please even if one of them is the other’s attorney.

There is little I can say on this subject definitively, but I do feel pretty strongly that the term “a blanket sex ban” used in the article is the wrong one as it can be read to be far too narrow a restriction (as opposed to “a blanket ban on sex”), and it is one where I read it and can’t help but hear Sterling Archer, in my head, immediately say: “Phrasing.”

My reason for writing though is not just to be able to make that Archer reference, I swear.  My reason for writing is to advocate for my belief that the Tennessee approach to this issue in the ethics rules really gets it right and ought to be emulated by California and anywhere else that is in need of a rules fix on this front.

In Tennessee, we did not adopt Model Rule 1.8(j) but in large part because it is too narrow rather than because it is too broad.

The Model Rule, for example, doesn’t cover a lot of ground that is problematic.  Imagine the context of a divorce case in which the lawyer for the wife is having sex with the husband.  Or imagine a criminal defense lawyer who is representing a jailed husband but having sex with the husband’s wife.  Or imagine an even less conventional arrangement where there are three people in a room and sexual relationships are present but at no point does the attorney in the room engage in sexual conduct with the person in the room who happens to be the attorney’s client.

Those are all real conflict of interest problems for the lawyers in question but the approach taken by the ABA Model Rules wouldn’t prohibit any of them.   (They also each have really happened and been the subject of publicity but I’m not going to dig up and provide links so as not to open any old wounds for anybody involved.)

In Tennessee, we recognized (and in so doing we largely followed the lead of D.C. if memory serves) that the only approach to the issue of conflicts created for lawyers by sexual relationships that goes as far as it needs to but that also still provides for the ability, in rare circumstances, for a lawyer and a client to have a mutually-consented-to sexual relationship (perhaps say if they were married) is an approach that treats the issue as just one variety of “personal interest” conflict of a lawyer that can result in a material limitation conflict under RPC 1.7(a)(2).

Thus, our rules address the topic through three paragraphs of Comment to RPC 1.7 as follows:

[12]  The relationship between lawyer and client is  fiduciary one in which the lawyer occupies the highest position of trust and confidence.  Because of this fiduciary duty to clients, combing a professional relationship with any intimate personal relationship may raise concerns about conflict of interest, impairment of judgment of both lawyer and client, and preservation of attorney-client privilege.  These concerns may be particularly acute when a lawyer has a sexual relationship with a client.  Such a relationship may create a conflict of interest under paragraph (a)(2) or violate other disciplinary rules, and it generally is imprudent even in the absence of an actual violation of these Rules.

[12a]  Especially when the client is an individual, the client’s dependence on the lawyer’s knowledge of the law is likely to make the relationship between the lawyer and client unequal.  A sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role and thereby violate the lawyer’s basic obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant risk that the lawyer’s emotional involvement will impair the lawyer’s professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict the extent to which communications will be protected by the privilege, because communications are protected by the privilege only when they are imparted in the context of the client-lawyer relationship.  The client’s own emotional involvement may make it impossible for the client to give informed consent to these risks.

[12b]  Sexual relationships with the representative of an organizational client may not present the same questions of inherent inequality as the relationship with an individual client.  Nonetheless, impairment of the lawyer’s independent professional judgment and protection of the attorney-client privilege are still of concern, particularly if outside counsel has a sexual relationship with a representative of the organization who supervises, directs, or regularly consults with an outside lawyer concerning the organization’s legal matters.  An in-house employee in an intimate personal relationship with outside counsel may not be able to assess and waive any conflict of interest for the organization because of the employee’s personal involvement, and another representative of the organization may be required to determine whether to give informed consent to a waiver.  The lawyer should consider not only the disciplinary rules but also the organization’s personnel policies regarding sexual relationships (for example, prohibiting such relationships between supervisors and subordinates).

I happen to think these three paragraphs cover the waterfront quite ably when it comes to running such an issue through the “material limitation” conflict spectrum as a personal interest of the lawyer that can impact the representation.

To the extent we stole this good idea from D.C., California ought to feel free to steal it from us should it wish.

TN Supreme Court rejects proposed resolution of disciplinary case as too lenient

This week sees a rare instance of media publicity regarding something perceived to itself be a rare event (but for which it is difficult to prove that the perception is also reality) – the rejection of a negotiated conditional guilty plea in a lawyer discipline case that had been approved by a hearing panel, and the BPR.  The Knoxville daily newspaper has the story about the Court’s rejection of a deal for a Knoxville lawyer who would, under the terms of the conditional guilty plea, have been suspended for 1 year, with 30 days of active suspension and 11 months of probation thereafter.  Again, thanks to the Knoxville News Sentinel, you can also take a look at the Court’s order indicating the punishment should be increased here.

Although all aspects of the record of disciplinary proceedings are technically public after the BPR files a formal petition for discipline, they are not all that easily accessible compared to many other kinds of court records.  So, traditionally, unless you are one of the lawyers involved in the process (as the target or as someone representing the target), you’re not all that likely to learn about the outcomes of the proceedings until they have wrapped up and the BPR puts out a press release about the discipline imposed.  As a result, all that many of us who practice in this area have to go on is our own experience in representing clients, mine has led me to believe that instances where the Court ends up rejecting agreed discipline that passed muster with a hearing panel and the BPR is a rare event.

This particular instance likely came to light given (1) the overlap with some federal court proceedings flowing from a simultaneous, but secret, investigation of this lawyer by the U.S. DOJ, and (2) the fact that this lawyer is currently involved as a lawyer for clients in some high-profile litigation going on in Tennessee.

The underlying allegations involve a sexual relationship between the lawyer and an indigent, allegedly addicted client the lawyer had been representing as court-appointed counsel and a claim by the lawyer to suffer himself from sexual addiction.  As good a time as any to remind lawyers in Tennessee, that instead of having a rule on this issue patterned after the ABA Model Rule 1.8(j) that is limited to clients (and would not for example have reached this kind of conduct if the relationship had been with the client’s spouse), we treat a lawyer’s sexual relationships under RPC 1.7 as a subset of “personal interest” conflicts that can create a material limitation on the ability to represent a client and elaborate at length on the problems created in Comments [12], [12a], and [12b].