Hello and Happy Groundhog Day! Welcome to this edition of the JACPA Ethics Alert which will discuss the recent Wyoming Supreme Court disciplinary opinion which approved the Wyoming Board of Professional Responsibility’s Report and Recommendation that a lawyer receive a public censure (reprimand) for using his client to finalize a divorce settlement agreement with the represented spouse and without advising the spouse’s lawyer. The case is Bd. of Professional Responsibility v. Melchior, Wyo., Case No. WY 4, No. D-11-0005 (January 6, 2012).
The opinion approved the Board’s finding that the lawyer’s conduct violated Rule 4.2, Wyoming Rules of Professional Conduct, which generally prohibits a lawyer from directly contacting anyone who is represented by counsel in the matter. (Florida Bar Rule 4-4.2 is substantially similar).
According to the Report, when Melchior filed the wife’s divorce petition, the husband hired another lawyer (Mincer) to represent him. While the case was pending, the wife had contact with the husband and signed a settlement agreement that Melchior had edited. Although Melchior apparently was aware of the contact, he never informed the Mincer that the husband and wife were meeting without the lawyers to talk about settlement.
The husband subsequently told Mincer that he had signed the documents. Mincer contacted Melchior and requested a copy of the agreement and asked him not to file it. Although Melchior initially told Mincer that he would not file the agreement with the court, he later filed it after deciding that the settlement agreement was valid and enforceable because it was negotiated directly between the divorcing spouses without his involvement. Mincer subsequently filed the Bar complaint against Melchior.
As part of the settlement of the disciplinary case, Melchior admitted that he violated Rule 4.2, “when he created and gave to his client a divorce settlement agreement and a confidential financial statement at a time when (the lawyer) knew or reasonably should have known that there was a substantial risk that she would deliver them to the husband, whom (the lawyer) knew was being represented by counsel.” Melchior agreed that his conduct also violated Rule 8.4(d) (conduct prejudicial to the administration of justice) and the Report stated that this violation occurred when he presented the settlement agreement to the court for enforcement after assuring Mincer that he would not file it without her approval. Melchior expressed remorse for the poor judgment committing the violations and agreed to the censure (reprimand) and costs.
Importantly, the conclusions and Bar rule violations in the report and opinion are contrary to a recent ABA Formal Opinion 11-461 (August 4, 2011) which concluded that such conduct would be permissible under the ABA Model Rules. The relevant language from that ABA opinion is below.
“The client may ask her lawyer if she may communicate directly with her husband to see if an agreement can be reached on some contested issues. Alternatively, the lawyer might independently suggest that the possibility of resolving outstanding issues would be enhanced if the client communicates directly with her husband. The client also might benefit from the lawyer’s advice on how she should conduct such settlement negotiations, the topics or issues to be covered, and the goals or objectives to be reached. The client also could ask the lawyer to prepare a marital settlement agreement with the goal of having her husband execute the agreement during her meeting with him.”
The ABA’s Standing Committee on Ethics and Professional Responsibility has scheduled a meeting this month to discuss whether to modify this opinion’s interpretation of Model Rule 4.2.
Bottom line: As I have said before, ABA, Florida Bar, and other state ethics opinions are not binding; however, they can be used for argument if issues related to conduct in which the lawyer relied upon the opinions or cases arise. The same analysis applies to court opinions interpreting other state Bar rules and imposing discipline on a lawyer. This opinion illustrates that lawyers must always be very aware of potential issues with regard to direct client contact, particularly if the lawyer has prepared an agreement without advising the lawyer for the opposing party and either encourages or has knowledge of direct contact between the parties about the agreement.
…be careful out there!
| As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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