AN UNNAMED ATTORNEY V. KENTUCKY BAR ASSOCIATION
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AN UNNAMED ATTORNEY
MOVANT
V.
IN SUPREME COURT
KENTUCKY BAR ASSOCIATION
RESPONDENT
OPINION AND ORDER
Pursuant to SCR 3 .480(2), Movant, An Unnamed Attorney, moves this
Court to impose the sanction of a Private Reprimand in' the above referenced
disciplinary proceeding .
In early 2003, Movant was employed as an attorney by John and Jane
Doe,' husband and wife, to perform an investigation of the circumstances surrounding
the fatal shooting of Mrs. Doe's former husband . Neither Mr . nor Mrs . Doe had been
charged with any crime in connection with that occurrence ; however, they were
concerned that one or both of them might be charged with a crime as the official
investigation proceeded . The Does advised Movant that neither of them had played
any role in the shooting and that they had a common alibi . They sought to employ
' The names of the parties have been changed to protect the anonymity of the attorney
being reprimanded privately . Though this Reprimand is private and only the attorney
himself should know this case is about him, the Court feels other members of the bar
will benefit from a published opinion condemning Movant's actions.
Movant to investigate the shooting on their behalf, in the hope that the investigation
would produce evidence supporting their claim that they were innocent of any
involvement .
Movant advised the Does that a conflict of interest could arise in the
course of his work on their behalf . He also advised them that if a conflict of interest did
arise he might be required to withdraw from the joint employment. However, he did not
advise them that any and all information obtained during the joint representation or
obtained in any communication to him by them would be available to each client and
exchanged freely between the clients in the absence of a conflict of interest. Movant
asserts that he did not anticipate the possibility that the interests of the Does would
become so materially divergent that there would be a conflict of interest in providing the
results of the investigation to each of them. He acknowledges that he did not explain
the potential ramifications of joint representation in that regard.
After discussing the aforementioned aspects of the employment, Movant
agreed to undertake the investigation for a flat fee of $7,500. The Does made an initial
payment of $2,500, and Movant commenced work on their behalf . They paid him an
additional $3,000 after he began work, leaving a balance of $2,000 still unpaid.
The investigation produced information that indicated that one of the Does
was directly involved in the shooting, contrary to what Movant had been told. Upon
discovery of this information, and following communications with the KBA Ethics
Hotline, Movant determined that he should withdraw from the joint employment.
Furthermore, Movant concluded that he should not disclose certain results of his
investigation to either Mr. or Mrs. Doe without the consent of each of them, which they
declined to give . Movant encouraged each of them to obtain new counsel, and they
followed this advice.
After receiving a bar complaint from the Does, the Inquiry Commission
authorized a Charge against Movant pursuant to SCR 3.190 . The Charge contains two
counts, both of which are based on the allegation that Movant did not adequately
explain the potential for a conflict of interest and the potential consequences of such a
conflict. Count I alleges that Movant violated SCR 3.130-1 .4(b), which states : "a lawyer
should explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation ." Count II alleges that Movant violated
SCR 3.130-1 .7(2)(b) which states :
A lawyer shall not represent a client if the representation of
that client may be materially limited by the lawyer's
responsibilities to another client or to a third person, or by
the lawyer's own interests, unless :
(1) The lawyer reasonably believes the representation will
not be adversely affected ; and
(2) The client consents after consultation . When
representation of multiple clients in a single matter is
undertaken, the consultation shall include explanation of the
implications of the common representation and the
advantages and risks involved .
This rule does not absolutely prohibit common representation . As neither
of the Does had been charged at the time the representation commenced, the rule only
required that Movant reasonably believe the representation of each client would not be
adversely affected by the dual representation, and that each of the clients consent after
consultation . In the context of common representation, consent must be informed, and
this requires that each client be made aware of the full consequences of such
representation . This includes the meaning of confidentiality, and the reasonably
foreseeable means that conflicts could adversely affect the interests of each client .
Such communication must "include explanation of the implications of the common
representation ."
2
In this case there was a lack of required communication by Movant.
Specifically, Movant failed to explain that there would be no confidentiality as between
the two clients and the lawyer, that all information discovered would be furnished to
both, and that each client was owed the same duty. When the investigation uncovered
information that was favorable to one client but harmful to the other, Movant refused to
release the information he had gathered without the acquiescence of both clients, which
was not given . This resulted from his failure to initially explain the implications of
common representation to both clients . When the investigation revealed that one of the
clients was involved in the homicide, Movant had a duty with respect to that client to
keep that fact confidential . On the other hand, he had a duty to the other client to
provide exculpatory information which necessarily included information he was
obligated to keep confidential .
It should be noted that the advice given in the Ethics Hotline opinion does
not shield Movant from this Charge, as the Charge arises from the commencement of
the representation and before the events that led him to request an Ethics Hotline
opinion. This case well illustrates the potential peril lawyers face when undertaking joint
representation . SCR 3.130-1 .7(2)(b) is mandatory and the consent element must be
informed consent, including a full explanation of all foreseeable ramifications .
The KBA has expressed its agreement with the motion made by Movant,
and we feel that the punishment is appropriate, especially in light of the unique factors
of this case . We hereby grant the motion and, it is ORDERED that :
2 SCR 3 .130-1 .7(2)(b) .
1 . Movant, An Unnamed Attorney, is hereby privately reprimanded for
violations of SCR 3 .130-1 .4(b) and SCR 3 .130-1 .7(2)(b) .
2 . In accordance with SCR 3.450, Movant is directed to pay costs in
the amount of $49 .60, for which execution may issue from this Court upon finality of this
Opinion and Order .
All concur.
ENTERED : March 23, 2006 .
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