Link for Opinion: http://scholar.google.com/scholar_case?case=3957021689359029401&q=rules+of+professional+conduct&hl=en&as_sdt=80000004&as_ylo=2010
In People v. Waterstone, 486 Mich. 942, 783 N.W.2d 314 (2010), the court of appeals directed the Attorney General to withdraw from prosecution of the case because of a conflict of interest under Michigan Rules of Professional Conduct 1.9 and 1.10. In this case, the Attorney General brought a felony complaint against Circuit Court Judge Waterstone, alleging that she knowingly permitted witnesses to commit perjury during a criminal trial. One of the two defendants from that criminal trial had earlier filed a federal civil rights suit against the judge and others. The Attorney General’s office assigned an assistant Attorney General from the Public Employment, Elections and Tort Division to defend the judge in the civil action, which was eventually dismissed. The Wayne County Prosecutor withdrew from prosecution of individuals allegedly involved in the perjury because of a conflict of interest, and eventually the Attorney General agreed to prosecute the cases.
The Court of Appeals held that because the prosecuting attorney learned confidential information during representation of the judge in the civil action and was then asked to investigate an alleged crime by that former client. In this case, the Attorney General’s office was a “firm” under Michigan Rules of Professional Conduct 1.10. This means that the Attorney General’s office should have conducted a conflict check before getting involved with the case. Even though the assistant Attorney General involved in the prosecution did not have actual knowledge of the Attorney General’s former representation of the judge, the court held that “prosecution of a judge is unusual, and knowledge of the potential federal case against the judge could be inferred under the circumstances.” Because a simple conflict check would have revealed the federal lawsuit, the Attorney General should have obtained the consent of the former client before taking the case. Further, the Attorney General’s failure to disclose the conflict prejudiced the judge, because it was reasonable for the judge to believe that the Attorney General was still representing her when an investigator from the Attorney General’s office interviewed her in connection with the perjury claims. Because of the conflict of interest, the court directed the Attorney General to withdraw from prosecuting the judge in the criminal matter.
Showing posts with label conflict of interest. Show all posts
Showing posts with label conflict of interest. Show all posts
Tuesday, November 30, 2010
Attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest
Link for opinion: http://www.azcourts.gov/Portals/36/2010_Scanned/JOandOrders/CookJO8112010.pdf
In re Cook, No. SB-10-0085-D (Ariz. Aug. 8, 2010) available at http://wwwazcourts.gov/Portals/36/2010_Scanned /JOandOrders/CookJ-8112010.pdf, Robert Cook, an attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest.
The Disciplinary Commission of Arizona has reviewed six counts against Mr. Cook. It has been found that Mr. Cook in representing several clients has violated several of the Arizona Court Rules. The violations include the following: 1.1(Competence), 1.2(Scope of Representation), 1.3(Diligence), 1.4(Communication), 1.5(Fees), 1.7(Conflict of Interest), 3.1(Meritorious Claims and Contentions), 3.2(Expediting Litigation), 5.3(Responsibilities Regarding Nonlawyer Assistants), and 8.4(d) (Misconduct).
Several of the counts have shown that Mr. Cook has not provided competent representation in violation of ER 1.1. Mr. Cook has missed critical filing deadlines that could have harmed each of the client’s case. If he did not miss a critical deadline he would request for an extension on the deadline therefore putting a delay in the case in violation ER 3.2. Several default judgments were filed against his clients due to his lack of response or delay in response. Due to the default judgments or lack of response from Mr. Cook, some of Mr. Cook’s clients felt they needed to hire a new attorney to represent them in their legal issues.
Mr. Cook’s communication with his clients is insufficient. Mr. Cook did not send an accounting statement of his services unless the client requested it. Mr. Cook has failed to inform his clients about decisions or circumstances relating to the client’s case. This includes if the client’s objectives could or will be met which leads to violation of 1.2 and 1.4. Mr. Cook also did not notify his client’s status of their claim. While representing several clients he did not communicate with the clients the scope of representation or what rates is the responsibility of the client in violation of ER 1.5.
While on a conference call representing the debtor in a bankruptcy case, Mr. Cook offered his services to several creditors which will lead to violation in ER 1.7. Several of the creditors have accepted the offer for Mr. Cook to represent them and file a Proof of Claim for them. It has also been shown the Mr. Cook was representing a LLC and individuals who were running the LLC which could lead to a violation of the ER 1.7. Since there was comingling of money in accounts it was found that this was a conflict of interest in representing the LLC and the individuals. The issue is what money is available to which creditors, the LLC creditors or the individual creditors. A waiver has not been signed by any of the parties that could have a potential interest.
The Hearing Officer recommends that Mr. Cook shall receive censure, two year probation, and refrain from engaging conduct that would violate Rules of Professional Conduct or rules of the Supreme Court. The probation will include participating in Law Office Management Assistant Program, participating in Member Assistance Program and Continuing Legal Education in specific areas. The Supreme Court of Arizona affirmed the recommendations of the Hearing Officers.
In re Cook, No. SB-10-0085-D (Ariz. Aug. 8, 2010) available at http://wwwazcourts.gov/Portals/36/2010_Scanned /JOandOrders/CookJ-8112010.pdf, Robert Cook, an attorney licensed in the state of Arizona, has violated his client-lawyer relationship and conflict of interest.
The Disciplinary Commission of Arizona has reviewed six counts against Mr. Cook. It has been found that Mr. Cook in representing several clients has violated several of the Arizona Court Rules. The violations include the following: 1.1(Competence), 1.2(Scope of Representation), 1.3(Diligence), 1.4(Communication), 1.5(Fees), 1.7(Conflict of Interest), 3.1(Meritorious Claims and Contentions), 3.2(Expediting Litigation), 5.3(Responsibilities Regarding Nonlawyer Assistants), and 8.4(d) (Misconduct).
Several of the counts have shown that Mr. Cook has not provided competent representation in violation of ER 1.1. Mr. Cook has missed critical filing deadlines that could have harmed each of the client’s case. If he did not miss a critical deadline he would request for an extension on the deadline therefore putting a delay in the case in violation ER 3.2. Several default judgments were filed against his clients due to his lack of response or delay in response. Due to the default judgments or lack of response from Mr. Cook, some of Mr. Cook’s clients felt they needed to hire a new attorney to represent them in their legal issues.
Mr. Cook’s communication with his clients is insufficient. Mr. Cook did not send an accounting statement of his services unless the client requested it. Mr. Cook has failed to inform his clients about decisions or circumstances relating to the client’s case. This includes if the client’s objectives could or will be met which leads to violation of 1.2 and 1.4. Mr. Cook also did not notify his client’s status of their claim. While representing several clients he did not communicate with the clients the scope of representation or what rates is the responsibility of the client in violation of ER 1.5.
While on a conference call representing the debtor in a bankruptcy case, Mr. Cook offered his services to several creditors which will lead to violation in ER 1.7. Several of the creditors have accepted the offer for Mr. Cook to represent them and file a Proof of Claim for them. It has also been shown the Mr. Cook was representing a LLC and individuals who were running the LLC which could lead to a violation of the ER 1.7. Since there was comingling of money in accounts it was found that this was a conflict of interest in representing the LLC and the individuals. The issue is what money is available to which creditors, the LLC creditors or the individual creditors. A waiver has not been signed by any of the parties that could have a potential interest.
The Hearing Officer recommends that Mr. Cook shall receive censure, two year probation, and refrain from engaging conduct that would violate Rules of Professional Conduct or rules of the Supreme Court. The probation will include participating in Law Office Management Assistant Program, participating in Member Assistance Program and Continuing Legal Education in specific areas. The Supreme Court of Arizona affirmed the recommendations of the Hearing Officers.
Wednesday, September 8, 2010
Missouri: Lawyer Suspended for Violating Rules of Professional Conduct
Link for opinion: http://www.courts.mo.gov/file.jsp?id=34349
In In re Coleman, 295 S.W.3d 857, 2009 Mo. LEXIS 468 (Mo. 2009), the Missouri Supreme Court suspended a lawyer’s license, stays execution of the suspension and places the lawyer on probation for one year with certain requirements.
The Missouri Supreme Court determined the lawyer knowingly made decisions without the clients consent in violation of Mo. Sup. Ct. R. 4-1.2(a) and created a conflict of interest in violation of Mo. Sup. Ct. R. 4-1.7. The lawyer also failed to keep personal funds separate in violation of Mo. Sup. Ct. R. 4-1.15(c) and failed to adhere to adequate termination of representation in violation of Mo. Sup. Ct. R. 4-1.16. By violating rules of professional misconduct, he also violated Mo. Sup. Ct. R. 4-8.4(a) and 8.4(d).
The lawyer also failed to withdraw after creating a conflict of interest with his client and failed to respond to a request of information so the plaintiff could secure new counsel for further cases. The lawyer is reluctant to accept that his actions are improper and prohibited. The court held that an attorney has ethical duties to the client and must not deviate from the rules of professional conduct when representing a client.
This case shows the importance of the lawyer’s duty to follow the rules of professional conduct when representing a client under Rule 4-1.2(a) that states “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Additionally, Rule 4-1.7 states “a lawyer shall not represent a client if the representation of that client may be materially limited…by the lawyer’s own interest.”
In In re Coleman, 295 S.W.3d 857, 2009 Mo. LEXIS 468 (Mo. 2009), the Missouri Supreme Court suspended a lawyer’s license, stays execution of the suspension and places the lawyer on probation for one year with certain requirements.
The Missouri Supreme Court determined the lawyer knowingly made decisions without the clients consent in violation of Mo. Sup. Ct. R. 4-1.2(a) and created a conflict of interest in violation of Mo. Sup. Ct. R. 4-1.7. The lawyer also failed to keep personal funds separate in violation of Mo. Sup. Ct. R. 4-1.15(c) and failed to adhere to adequate termination of representation in violation of Mo. Sup. Ct. R. 4-1.16. By violating rules of professional misconduct, he also violated Mo. Sup. Ct. R. 4-8.4(a) and 8.4(d).
The lawyer also failed to withdraw after creating a conflict of interest with his client and failed to respond to a request of information so the plaintiff could secure new counsel for further cases. The lawyer is reluctant to accept that his actions are improper and prohibited. The court held that an attorney has ethical duties to the client and must not deviate from the rules of professional conduct when representing a client.
This case shows the importance of the lawyer’s duty to follow the rules of professional conduct when representing a client under Rule 4-1.2(a) that states “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” Additionally, Rule 4-1.7 states “a lawyer shall not represent a client if the representation of that client may be materially limited…by the lawyer’s own interest.”
Michigan: Trial Court Judge accused of knowingly allowing the testimony of perjuring witnesses
Link for opinion: http://coa.courts.mi.gov/documents/opinions/final/coa/20100304_c294667_44_294667.opn.pdf
In the case of People v. Waterstone, 485 Mich. 1016; 776 N.W.2d 113 (2010), Judge Mary Waterstone was accused of permitting witnesses to knowingly commit perjury at a criminal case. The parties to the case later filed a suit against her for this misconduct and the AG defended her and then subsequently prosecuted her for the same crime. She later filed a motion to have the Attorney General (AG) disqualified from the case for conflict of interest.
She feels that the AG’s prosecution of her is inconsistent with the Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, 1.10. As well as cited inconstancies with the case of Attorney General vs. Public Service Commission, 243 Mich. App 487; 625 NW2d 16 (2000).
The AG failed to notify the defendant that she was party to the initial investigation. The defendant claims she had confidential conversations with the AG that could have been shared with the prosecution side of the case. The AG should not be allowed to prosecute and defend the client all at once according to MRPC. In AG vs. PSC it was found that the Attorney General’s office has a different role in government and the rules of professional conduct cannot easily apply to them. The AG is compelled to defend judges in civil suits while also prosecuting cases that county prosecutors do not.
In this case the defendant is being investigated under the MRPC and the AG holds a conflict of interest. The court has rules that the AG be disqualified from this particular case. The AG is being held to the MRPC in this instance. The court reversed and remanded.
In the case of People v. Waterstone, 485 Mich. 1016; 776 N.W.2d 113 (2010), Judge Mary Waterstone was accused of permitting witnesses to knowingly commit perjury at a criminal case. The parties to the case later filed a suit against her for this misconduct and the AG defended her and then subsequently prosecuted her for the same crime. She later filed a motion to have the Attorney General (AG) disqualified from the case for conflict of interest.
She feels that the AG’s prosecution of her is inconsistent with the Michigan Rules of Professional Conduct (MRPC) 1.7, 1.9, 1.10. As well as cited inconstancies with the case of Attorney General vs. Public Service Commission, 243 Mich. App 487; 625 NW2d 16 (2000).
The AG failed to notify the defendant that she was party to the initial investigation. The defendant claims she had confidential conversations with the AG that could have been shared with the prosecution side of the case. The AG should not be allowed to prosecute and defend the client all at once according to MRPC. In AG vs. PSC it was found that the Attorney General’s office has a different role in government and the rules of professional conduct cannot easily apply to them. The AG is compelled to defend judges in civil suits while also prosecuting cases that county prosecutors do not.
In this case the defendant is being investigated under the MRPC and the AG holds a conflict of interest. The court has rules that the AG be disqualified from this particular case. The AG is being held to the MRPC in this instance. The court reversed and remanded.
Wednesday, June 2, 2010
Idaho: Severson, represented by conflict free counsel?
Case Name: State of Idaho, Plaintiff, v. Larry M. Severson, defendant
Citation: 215 P. 3d 414-Idaho: Supreme Court, Boise 2009
Facts: Mary and Larry Severson were married and resided in Idaho. Mary passed away from being poisoned. Severson was indicted on one count of first degree murder and one count of poisoning food and/or medicine. The Elmore County Public Defender’s Office was appointed to represent Severson at trial. Severson argued that the appointment of Mr. Franchiseur was a conflict of interest and was operating under conflict of interest because Terry Ratliff, another public defender, who works in the same office of Mr. Franchiseur, had represented Mary’s mother in a civil suit that was directly related to his criminal case. Trial court concluded Mr. Ratliff’s conflict did not preclude Mr. Franchiseur from representing Severson.
Issue: Was Severson denied his right to be represented by conflict free counsel?
Rule of Law: State v. Nath, A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. Wood v. Georgia The amendment has been interpreted to include the right to be represented by conflict-free counsel. Smith v. Lockhart In order to satisfy the inquiry requirement, a trial court’s examination of the potential conflict must be thorough and searching and should be conducted on the record.
Under the Idaho Rules of Professional Conduct Rule 1.10, the court reasoned that because the Elmore County Public Defender’s Office was not a “firm,” Mr. Ratliff’s conflict should not be imputed to Mr. Franchiseur. There is no evidence that Mr. Franchiseur and Mr. Ratliff communicated about Severson’s case or that they shared information. As a precaution the court directed to completely screen Mr. Ratliff from involvement in any activities or information relating to Severson’s case.
The rules define the term, “firm” as “lawyers in a law partnership, Professional Corporation, sole proprietorship or other association authorized to practice law; or lawyers unemployed in a legal services organization or the legal department of a corporation or other organization.”
Application of law to facts: The state of Idaho argues that even if the trial court did not make a proper inquiry into the conflict, Severson’s challenge should fail because he has not established that the conflict adversely affected his lawyer’s performance or otherwise resulted in prejudice.
Severson argues, the district decision should be reversed because the court failed to conduct an adequate inquiry into the potential conflict; and erred in concluding that the Public Defender’s Office did not make a conflict of interest.
Severson was provided with an opportunity to be heard.
Conclusion: There is no evidence in the record that would support the conclusion that Mr. Ratliff’s conflict was likely to result in prejudice. Severson was not deprived of his right to be represented by conflict-free counsel.
This case teaches us the lawyer’s duty under the Rules of Professional Conduct: Rule 1.7 conflict of interest: states “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” In addition to that Idaho Rules of Professional Conduct judge whether the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.
Citation: 215 P. 3d 414-Idaho: Supreme Court, Boise 2009
Facts: Mary and Larry Severson were married and resided in Idaho. Mary passed away from being poisoned. Severson was indicted on one count of first degree murder and one count of poisoning food and/or medicine. The Elmore County Public Defender’s Office was appointed to represent Severson at trial. Severson argued that the appointment of Mr. Franchiseur was a conflict of interest and was operating under conflict of interest because Terry Ratliff, another public defender, who works in the same office of Mr. Franchiseur, had represented Mary’s mother in a civil suit that was directly related to his criminal case. Trial court concluded Mr. Ratliff’s conflict did not preclude Mr. Franchiseur from representing Severson.
Issue: Was Severson denied his right to be represented by conflict free counsel?
Rule of Law: State v. Nath, A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. Wood v. Georgia The amendment has been interpreted to include the right to be represented by conflict-free counsel. Smith v. Lockhart In order to satisfy the inquiry requirement, a trial court’s examination of the potential conflict must be thorough and searching and should be conducted on the record.
Under the Idaho Rules of Professional Conduct Rule 1.10, the court reasoned that because the Elmore County Public Defender’s Office was not a “firm,” Mr. Ratliff’s conflict should not be imputed to Mr. Franchiseur. There is no evidence that Mr. Franchiseur and Mr. Ratliff communicated about Severson’s case or that they shared information. As a precaution the court directed to completely screen Mr. Ratliff from involvement in any activities or information relating to Severson’s case.
The rules define the term, “firm” as “lawyers in a law partnership, Professional Corporation, sole proprietorship or other association authorized to practice law; or lawyers unemployed in a legal services organization or the legal department of a corporation or other organization.”
Application of law to facts: The state of Idaho argues that even if the trial court did not make a proper inquiry into the conflict, Severson’s challenge should fail because he has not established that the conflict adversely affected his lawyer’s performance or otherwise resulted in prejudice.
Severson argues, the district decision should be reversed because the court failed to conduct an adequate inquiry into the potential conflict; and erred in concluding that the Public Defender’s Office did not make a conflict of interest.
Severson was provided with an opportunity to be heard.
Conclusion: There is no evidence in the record that would support the conclusion that Mr. Ratliff’s conflict was likely to result in prejudice. Severson was not deprived of his right to be represented by conflict-free counsel.
This case teaches us the lawyer’s duty under the Rules of Professional Conduct: Rule 1.7 conflict of interest: states “a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” In addition to that Idaho Rules of Professional Conduct judge whether the circumstances demonstrate a potential conflict of interest and a significant likelihood of prejudice.
Wednesday, March 3, 2010
New Hampshire: Lawyer Suspended Due to Conflicts of Interest
Facts: In this case the respondent, Donald L. Wyatt, Jr. is an attorney licensed to practice in New Hampshire. The Supreme Court Professional Conduct Committee filed a petition to have Wyatt disbarred. Wyatt was hired by David Stacy to serve as his personal counsel. David was a full-time employee of his mother and held her general power of attorney. Wyatt’s firm drafted a general power of attorney for Michel Brault to manage David’s affairs. Brault was a personal friend of Wyatt and the chief executive officer of former corporate client of Wyatt’s firm. In 2001, David’s mother “dismissed” David and cut off his support. Wyatt represented David in negotiations with his mother in order to get financial support from her.
A contract was agreed to in May of 2001 in which they agreed to set up mutual general releases. The agreement included, amongst other things, creating and funding of various trusts for David. It also stipulated that David file a petition for “voluntary conservatorship” requesting Brault to act as the conservator. The contract would terminate if, among other things, David terminated the conservatorship or dismissed Brault as conservator without cause. Wyatt explained the document in full. He gave him definitions and explained how David could opt out of the agreement and that this action could negate his mother’s financial obligations.
David asked Wyatt to continue as his personal attorney as well as representing his “conservatorship estate.” Wyatt explained that the conservator would decide if and when someone would serve as counsel. Wyatt did not discuss conflicts of interest. Wyatt explained and felt that David understood that Brault would be in charge of conservator issues and would have the final say if there were a disagreement between David and Brault.
The conservatorship was granted in June of 2001 and Brault was named conservator. Brault then asked Wyatt to represent the “Estate of David E. Stacy.” Wyatt advised Brault on the conservatorship and that Brault could not make personal choices for David.
Wyatt continued advising Brault and David about both personal and business matters concerning the conservatorship.
When there were complications concerning abdominal surgery that brought up possible mental health issues, Wyatt became concerned. Wyatt advised Brault and his wife Svetlana to ask for a limited guardianship in regards to medical issues. Even though Wyatt told them they should get another attorney for this issue, which they did, Wyatt continued giving them legal advice in pursuit of guardianship.
Throughout all of the issues with David and with Brault and Svetlana petitioning for conservatorship, all expenses, even the ones for Wyatt, were being billed to the conservatorship estate. This includes even when Brault and Svetlana had their own attorneys in both New Hampshire and Texas where the hospitalization of David took place.
Once the guardianship was granted, an attorney was appointed for David. Wyatt gave all materials and information about David to the attorney. The attorney met with David on April 24th. After that time Wyatt had nothing to do with David concerning the guardianship. David told his attorney that he was no longer happy with Wyatt and did not want him to represent him any more.
In spite of several more years and court dates dealing with these matters, Wyatt was still present and giving advice. Brault resigned from being David’s conservator. Finally, David’s sister, Deborah, filed to be David’s legal guardian. Deborah then filed a sworn statement in May of 2003 alleging professional misconduct on the part of Wyatt.
Issues: Did Wyatt violate the New Hampshire Rules of Professional Conduct 1.7 and 1.9, by representing two people at the same time concerning the same matter (conflict of interest)?
Was Wyatt charging illegal fees for services in violation of New Hampshire Rules of Professional Conduct 1.5?
Rule of Law: The New Hampshire Rules of Professional Conduct 1.7 states that a lawyer cannot represent a client if that relationship will “adversely affect” the relationship with the other client unless the client agrees to the relationship after being given all the information and possible consequences. Also, if the representation of the client would be “materially limited” by the case with the other client this would breach Rule 1.7 (b).
In Rule 1.9 Wyatt could not represent another person in the same matter as he represented the first person. In this case Wyatt represented David and the Brault in the guardianship matters.
Rule 1.5 has to do with charging illegal fees. The court contends that since Wyatt charged these fees while he was in violation of Rules 1.7 and 1.9 they were illegal.
Holding: The court held that Wyatt was indeed in violation of Rules 1.7, 1.9, and 1.5. There was a conflict of interest based on representing two people from the same case at the same time. Also, he also represented one client (Brault) once he no longer represented the other client (David). This is a conflict of interest because they are parties of the same case. They also said that Wyatt was charging fees at a time when he was in violation of Rules 1.7 and 1.9. The court held that Wyatt should have known or did know of the conflict of issue since at least twice two separate attorneys brought it to his attention.
The appropriate sanction for this case was held to be a two year suspension. One of the reasons was because there was no evidence of Wyatt not always working in the best interest of David.
A contract was agreed to in May of 2001 in which they agreed to set up mutual general releases. The agreement included, amongst other things, creating and funding of various trusts for David. It also stipulated that David file a petition for “voluntary conservatorship” requesting Brault to act as the conservator. The contract would terminate if, among other things, David terminated the conservatorship or dismissed Brault as conservator without cause. Wyatt explained the document in full. He gave him definitions and explained how David could opt out of the agreement and that this action could negate his mother’s financial obligations.
David asked Wyatt to continue as his personal attorney as well as representing his “conservatorship estate.” Wyatt explained that the conservator would decide if and when someone would serve as counsel. Wyatt did not discuss conflicts of interest. Wyatt explained and felt that David understood that Brault would be in charge of conservator issues and would have the final say if there were a disagreement between David and Brault.
The conservatorship was granted in June of 2001 and Brault was named conservator. Brault then asked Wyatt to represent the “Estate of David E. Stacy.” Wyatt advised Brault on the conservatorship and that Brault could not make personal choices for David.
Wyatt continued advising Brault and David about both personal and business matters concerning the conservatorship.
When there were complications concerning abdominal surgery that brought up possible mental health issues, Wyatt became concerned. Wyatt advised Brault and his wife Svetlana to ask for a limited guardianship in regards to medical issues. Even though Wyatt told them they should get another attorney for this issue, which they did, Wyatt continued giving them legal advice in pursuit of guardianship.
Throughout all of the issues with David and with Brault and Svetlana petitioning for conservatorship, all expenses, even the ones for Wyatt, were being billed to the conservatorship estate. This includes even when Brault and Svetlana had their own attorneys in both New Hampshire and Texas where the hospitalization of David took place.
Once the guardianship was granted, an attorney was appointed for David. Wyatt gave all materials and information about David to the attorney. The attorney met with David on April 24th. After that time Wyatt had nothing to do with David concerning the guardianship. David told his attorney that he was no longer happy with Wyatt and did not want him to represent him any more.
In spite of several more years and court dates dealing with these matters, Wyatt was still present and giving advice. Brault resigned from being David’s conservator. Finally, David’s sister, Deborah, filed to be David’s legal guardian. Deborah then filed a sworn statement in May of 2003 alleging professional misconduct on the part of Wyatt.
Issues: Did Wyatt violate the New Hampshire Rules of Professional Conduct 1.7 and 1.9, by representing two people at the same time concerning the same matter (conflict of interest)?
Was Wyatt charging illegal fees for services in violation of New Hampshire Rules of Professional Conduct 1.5?
Rule of Law: The New Hampshire Rules of Professional Conduct 1.7 states that a lawyer cannot represent a client if that relationship will “adversely affect” the relationship with the other client unless the client agrees to the relationship after being given all the information and possible consequences. Also, if the representation of the client would be “materially limited” by the case with the other client this would breach Rule 1.7 (b).
In Rule 1.9 Wyatt could not represent another person in the same matter as he represented the first person. In this case Wyatt represented David and the Brault in the guardianship matters.
Rule 1.5 has to do with charging illegal fees. The court contends that since Wyatt charged these fees while he was in violation of Rules 1.7 and 1.9 they were illegal.
Holding: The court held that Wyatt was indeed in violation of Rules 1.7, 1.9, and 1.5. There was a conflict of interest based on representing two people from the same case at the same time. Also, he also represented one client (Brault) once he no longer represented the other client (David). This is a conflict of interest because they are parties of the same case. They also said that Wyatt was charging fees at a time when he was in violation of Rules 1.7 and 1.9. The court held that Wyatt should have known or did know of the conflict of issue since at least twice two separate attorneys brought it to his attention.
The appropriate sanction for this case was held to be a two year suspension. One of the reasons was because there was no evidence of Wyatt not always working in the best interest of David.
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