Posts Tagged ‘conflict of interest’

Attorney Misbehavior on This American Life

Thursday, August 8th, 2013

The public radio show, This American Life, started out this week with an excellent piece on the human cost of attorney betrayal.  Although Ira Glass avoids giving the name of the attorney, the piece is likely about the three year suspension of Gregory A. Mikat, a Michigan attorney.  Mikat was suspended for having a sexual relationship with his client’s wife.  To make matters worse, Mikat was representing the client in a divorce action, and his client came to him to discuss his suspicions that his client was having an affair.

This is not the only case of attorney discipline for having affairs with clients’ wives.  The Supreme Court of South Carolina has ruled having an affair with a client’s wife is a per se ethical violation due to conflict of interest.  A Memphis attorney, Charles Sevier, was suspended for one year for having an affair with his client’s wife before representing the client in a divorce action.  San Francisco attorney, LeRue Grim, was suspended for 2 1/2 years for lying about having sex with a client’s wife while the client was in prison.

The Mississippi Supreme Court granted summary judgment in favor of the defendant, William Reed, in a case which involved a claim of breach of fiduciary duty due to Reed having an affair with a client’s wife, showing once again that just because something is unethical, it is not necessarily actionable.  Fellow Mississippi lawyer, Ronald Pierce, was not so lucky as the Mississippi Supreme Court upheld the $1.5 judgment against him for alienation of affection, breach of contract, and intentional infliction of emotional distress, due to his affair with his client’s wife.  Last January, a new trial was ordered for an Ohio man, Robert Caulley, who was convicted of killing his parents because Caulley’s defense attorney, James D. Owen, was having an affair with Caulley’s wife at the time he represented Caulley.

Suffice it to say, under any circumstance, having an affair with your client’s wife is probably not a good idea.

-Josh J.T. Byrne, Esquire

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Legal Malpractice Arising Out of Political Scandal

Tuesday, November 27th, 2012

The Philadelphia Inquirer has published an update on the Bowman v. K & L Gates legal malpractice action.  The legal malpractice action arose out of representation of Elmer “Al” Bowman by K&L Gates and Buchanan Ingersoll after Mr. Bowman was accused in the corruption scandal that brought down former State House Speaker John M. Perzel and State Representative Brett Feese.  Mr. Bowman was accused of working on tax-payer time to set up a program called Candidate Connect which was a campaign tool for Pennsylvania Republicans (”ComputerGate“).

The legal malpractice claim arose out of Mr. Bowman’s alleged desire to cooperate with authorities, and his counsel allegedly preventing him from doing so.  The malpractice action suggested a serious conflict of interest because Mr. Bowman did not know that K&L Gates was also representing Mr. Feese and Mr. Preski among others.  The Inquirer article notes that prosecutors’ statements during Mr. Bowman’s trial suggest these allegations had merit.  K&L Gates and Buchanan Ingersoll filed preliminary objections to the malpractice action on the basis, inter alia, that Mr. Bowman had not been exonerated, and the Bailey v. Tucker decision prevents legal malpractice claims from criminal defendants unless they establish they have pursued post-trial remedies and obtained relief which was dependent upon attorney error.  The Court of Common Pleas agreed, and sustained the preliminary objections.  Mr. Bowman’s counsel appealed, and the matter was settled on November 9.

In terms of legal malpractice avoidance, this case is a reminder, among other things, of the importance of examining actual and/or potential conflicts of interest.  Conflicts of interest are a major cause of legal malpractice and disciplinary actions.  Pennsylvania Rules of Professional Conduct 1.7-1.10  are good guides for identifying and avoiding conflict.

-Josh J.T. Byrne, Esquire (H.T. B.C.B.)

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Who Will Defend You?

Friday, October 19th, 2012

Most people understand that when they purchase insurance, they are agreeing to allow their insurer to select defense counsel for them should an action be brought against them.  Most attorneys understand that when defense counsel is assigned to a legal malpractice action defended by their professional liability carrier, there is the possibility of a conflict of interest between the desires of the client law firm and the designers of the insurer.  The Texas law firm of Coats, Rose, Yale, Ryman & Lee, when sued for legal malpractice, decided it could not abide by the provision of their insurance policy which gave their insurer the right to select defense counsel.  The law firm retained its own counsel, independently of its insurer, Navigators Specialty Insurance Co., and then sued the insurer when the insurer refuse to pay the attorneys fees.

In November 2011, U.  S.  District Judge Sidney Fitzwater granted summary judgment for Navigators.  Coats Rose appealed and a three-judge panel affirmed Judge Fitzwater’s decision earlier this week.  The appellate panel adopted Judge Fitzwater’s opinion which found both the law firm and insurer had the same incentive to defeat the claim, despite the insurers reservation of rights under the policy not to cover fraudulent willful violations of the statute.

Attorneys who represent defendants in legal malpractice actions are, as a rule, acutely aware of the potential for conflict in their cases.  The attorneys do all within their power to minimize that potential.  However, there are times when clients feel an attorney hired by their insurer cannot protect their interests.  On those occasions, the law firm is certainly entitled to hire its own counsel, but  they will generally have to do so out of their own pocket.

-Josh J.T. Byrne, Esquire

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