Hello everyone and welcome to this Ethics Alert blog which will discuss the recent North Dakota Supreme Court disciplinary opinion reprimanding a lawyer for violating conflict of interest rules by representing both the defendant and victim in a single criminal case and making false statements to the prosecutor. The case is Disciplinary Board of the Supreme Court of the State of North Dakota v. Blake D. Hankey, No. 20120304, 2012 ND 206 (October 15, 2012). The opinion is here: http://www.ndcourts.gov/court/opinions/20120304.htm
According to the opinion, the lawyer was admitted to practice in North Dakota on May 5, 2005 and he “undertook dual representation of an alleged perpetrator and alleged victim of the crimes of aggravated assault and terrorizing.” The “alleged perpetrator” and alleged victim executed a single representation agreement; however, since there was a no-contact order between them, the alleged victim signed in the lawyer’s office and the “alleged perpetrator” signed at the correctional center where he was being held on the criminal charges. The lawyer had the clients execute a waiver of conflict of interest
When he spoke with the criminal prosecutor handling the case, the lawyer failed to advise her that he also represented the alleged victim. When she learned of the dual representation, the prosecutor confronted the lawyer about the apparent conflict of interest and the lawyer falsely told her that he had cleared any conflict with his partners.
The lawyer was charged with violating the following North Dakota disciplinary rules: 1.7(a) a lawyer shall not represent a client if the lawyer’s ability to consider, recommend, or carry out a course of action on behalf of the client will be adversely affected by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests; 1.2(A)(3), a lawyer may be disciplined for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; and 8.4(c), a lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s fitness as a lawyer.
After a hearing, a disciplinary panel found that the lawyer’s conduct violated Rule 1.7(a), by representing one client whose interests were “inescapably adverse” to another client because they were alleged perpetrator and alleged victim of crimes and because he took steps that were adverse to each of them but that he did not violate Rule 1.2(A)(3) and Rule 8.4(c) since the false statement that he had cleared the conflict of interest with his partners did not affect the analysis and did not help him in any way and should not have mattered to the prosecutor. The panel also found that the lawyer did not have an ethical duty to disclose the victim’s status as his client before he was asked about it by the prosecutor. The panel recommended that the lawyer be reprimanded and pay the costs.
The opinion upheld the violation of Rule 4-1.7(a) but reversed the panel’s recommendation that the lawyer did not violate Rule 8.4(c) and found that there was clear and convincing evidence that the lawyer violated the rule since he admitted making the false statement that he had cleared the conflict of interest with his partners. The opinion upheld the recommended sanction of a reprimand and payment of costs.
Bottom line: the facts and result of this case are a bit crazy, to say the least. Not only did the lawyer represent both the alleged “perpetrator” and alleged victim in a single criminal case, but he also falsely claimed to the prosecutor that he had disclosed the dual representation to his partners and that they had approved the representation (the lawyer apparently never thought that the conflict might not be waivable by the clients either). Somewhat surprisingly, the lawyer received only a reprimand.
…be careful out there!
|Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
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