By Gary Schons
LAWYER and MATE, domestic partners, are at home and get into a terrible argument over finances. MATE becomes uncharacteristically angry and upset and grabs LAWYER around the neck and chokes LAWYER to the point of near unconsciousness. MATE releases LAWYER and backs way, crying in sorrow. LAWYER regains full consciousness, grabs a cellphone and calls 9-1-1 to report the domestic violence incident and summon the police. The police arrive a few minutes later, are admitted to the home by LAWYER, who then reports the incident to them. As required by law, the police immediately place MATE under arrest, handcuff MATE and lead MATE to the squad car for the ride to jail. Seeing this process upsets LAWYER who realizes the profound consequences on MATE of having called the police and setting a likely criminal prosecution in motion. LAWYER, who has practiced some criminal defense, drives to the jail, provides LAWYER’S State Bar Card to the DESK OFFICER and advises DESK OFFICER that LAWYER is representing MATE and wants to speak with MATE before the police do. LAWYER is placed in an “attorney visiting room” with MATE, just after completion of the booking process, where LAWYER tells MATE to invoke his right to silence and to the presence of a lawyer and not talk to the police or the prosecutor, and that LAWYER will arrange MATE’s release. MATE acknowledges the advice and is led away to holding area where the court has arranged for expedited initial appearances by video for minor offenses of arrest. LAWYER arranges to appear by video with MATE and succeeds in obtaining MATE’s immediate release on MATE’s own recognizance from the magistrate.
HAS LAWYER VIOLATED OR IMPLICATED ANY THE RULES OF PROFESSIONAL CONDUCT?
(RULES potentially implicated: 1.2 (scope of representation); 1.4 (communication with client); 1.7 (conflict of interest); 1.8.10 (sexual relations with client); 3.7 (lawyer as witness); 4.1 (truthfulness in statements to others); 8.4 (misconduct); B & P Code section 6106
Rule 4.1 provides that in representing a client a lawyer shall not make a false statement of material fact or law to a third party. Here, LAWYER told the DESK OFFICER that LAWYER represented MATE in order to gain special access to MATE. At that point in time, LAWYER had not established an attorney-client relationship with nor represented MATE. The statement was intended to, and in fact, induced an official act by the OFFICER—-special access to MATE—-and, thus, could be considered “material.” But, since LAWYER had not actually established an attorney-client relationship with MATE, was LAWYER “representing a client,” as described in the Rule? While MATE would not be considered to be an “implied client,” which arises from communications between a lawyer and a potential client, MATE could be said to be a “putative client.” It is doubtful that ethics authorities would allow LAWYER to escape through such a loophole. Additionally, Comment [1] to the rule references both Rule 8.4 and B & P Code section 6106. Both prohibit “dishonesty” by a lawyer without the “condition” it is in connection with the “representation of a client.” Section 6101 explicitly states that “dishonesty…whether the act is committed in the course of relations as an attorney or otherwise” constitutes a cause for discipline. So, even if rule 4.1 was not violated, the conduct is certainly within the sweep of Rule 8.4 and section 6106. LAWYER might also have violated Jail Rules and put at hazard special access to client-inmates.
The second troublesome area is the scope of LAWYER’s representation of MATE (Rule 1.2) and failure to communicate the limitation of the scope of that relationship (Rule 1.4) due to a conflict of interest (Rules 1.7 & 3.7). Rule 3.7 holds that a lawyer shall not act as an advocate in a trial in which the lawyer is likely to be witness without having obtained “informed written consent from the client.” While there was no “trial,” as charges had not been filed, LAWYER clearly had a conflict in the “matter,” as the complaining witness and crime victim, which would “materially limit” the lawyer’s representation of the client, again, without the client’s “informed written consent” (Rule 1.7 (b)). LAWYER clearly undertook to represent MATE, and MATE would reasonably have understood and impliedly consented to that representation, at least in the opening stages of the DV matter. While LAWYER could undertake to represent MATE in these preliminary stages, despite the two being domestic partners (Rule 1.8.10 prohibits sexual relations with a client except for a “registered domestic partner” or a consensual relationship which pre-existed the attorney-client relationship), LAWYER was obliged to limit the scope of representation because of the conflict, communicate that to MATE and obtain MATE’s “informed consent” (Rules 1.2, 1.4). LAWYER failed to do that.