Today’s post focuses a lawyer’s duty to consult with the client about how the lawyer will pursue the client’s objectives. Two rules are most relevant.
The first is V.R.Pr.C. 1.2(a). It states:
“(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.”
The second is V.R.Pr.C. 1.4(a)(2). It requires a lawyer to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished.”
In my experience, most lawyers are aware of the duty, even if unable to cite to the rules or quote them verbatim. It’s also my experience that lawyers are well-aware of the duty to maintain a client’s confidences. With these duties in mind, consider this scenario:
- Client meets with Lawyer to discuss getting divorced.
- Client mentions that Client has a relief from abuse order against Spouse, but Client and Lawyer do not have a substantive discussion about the order.
- Client expresses concern about Lawyer’s fee. Lawyer states that they can negotiate a payment plan.
- Client and Lawyer agree to meet the next day for Client to sign the divorce paperwork.
- Client leaves.
- After leaving, Client has second thoughts. So, Client does not keep the appointment to sign the divorce paperwork. Instead, two days after the initial meeting, Client informs Lawyer that Client has had a change of heart and will not need Lawyer’s services.
So far, the scenario is not uncommon. Here’s the twist.
- On the same day that Client was supposed to meet with Lawyer to sign the paperwork, Lawyer is in court and sees Spouse. Lawyer asks Spouse if Spouse has an attorney who would accept service of divorce papers. Until then, Spouse did not know the Client was considering divorce.
- Upon being informed by Client that Client no longer requires Lawyer’s services, Lawyer informs Client that Lawyer had seen Spouse and asked about service.
- Lawyer does not bill Client and they go their separate ways.
I can sense you sensing what happened next.
- A few weeks later, Client filed a disciplinary complaint against Lawyer. In it, Client expressed concern that Lawyer put Client at risk of further harm (abuse) by informing Spouse that Client wanted a divorce.
As you might have guessed, this happened in real life. Eventually, Lawyer was charged with violating Maine’s Rules of Professional Conduct. Specifically,
- Maine Rule 1.4(a)(2) by failing to reasonably consult with Client about the means (service) by which Client’s objective (divorce) would be pursued;
- Maine Rule 1.6(a)(i) by revealing a confidence or secret without Client’s informed consent; and,
- Maine Rule 8.4(d) by engaging in conduct prejudicial to the administration of justice.
In January, a panel concluded that Lawyer had violated each rule and reprimanded Lawyer. The panel’s decision is here. Lawyer appealed. Earlier this month, a single justice of the Maine Supreme Judicial Court affirmed the panel’s decision. The justice’s order is here. The Legal Profession Blog reported the order here.
After seeing the headline but before reading the decision and order, I expected the matter to involve Maine’s version of Rule 1.18, the rule that sets out a lawyer’s duties to prospective clients. In Vermont, the rule applies when a client consults with a lawyer in good faith but, for whatever reason, no client-lawyer relationship ensues.
I was wrong. Both the panel and the court concluded that a client-lawyer relationship had formed.
For the purposes of analyzing the confidentiality issue, it’s of little consequence whether a formal relationship existed. That is, whether a client is current or prospective, there’s a rule that prohibited Lawyer from revealing Client’s confidences. However, here’s why the conclusion that client-lawyer relationship had formed is important.
Lawyer was charged with violating Maine Rule 1.4(a)(2) by failing to reasonably consult with a client as to how the client’s objectives would be pursued. By its plain language, the rule does not apply to prospective clients.
So, having concluded that client-lawyer relationship had been formed, the question became whether Lawyer committed a violation by failing to consult with Client about service of the divorce paperwork. Here’s what the panel concluded:
- “[Lawyer] testified that Ms. Doe did not mention anything about the protection order at first during their meeting, and she showed ‘no particular concern’ about it. She did not provide a copy to him, and he had no substantive discussion with her about it. He did not discuss service or how it could best be effected in light of his client’s circumstances. In the Panel’s view, however, the possible methods and timing of service of a divorce complaint should always be discussed with a client, especially one who has a protective order against an abusive spouse. Ms. Doe’s safety should have been a primary concern to [Lawyer] in agreeing to represent her in a divorce. He should have talked with her about the options and timing of service, and whether Ms. Doe felt the need to make advance arrangements for a safe place to be around the time of service should her husband react in a volatile fashion.”
Referring to the fact that Lawyer’s answer to the charges included “If I had been informed that she was fearful of physical action against her I would not have spoken to her husband but would haev simply employed a Deputy Sheriff to make service upon him,” the panel went on to state:
- “[Lawyer] appeared to place the burden on Ms. Doe to tell him that she feared her husband so that he could have decided on another form of service . . . However, it was [Lawyer’s] duty to inquire further of Ms. Doe about the protective order and to fully discuss service, and the concerns around service, with her. Accordingly, the Panel finds that his failure to do so constitutes a violation of Rule 1.4(a)(2) of the M.R.P.C.”
On review, the Maine Supreme Judicial Court agreed, stating:
- “The record does not indicate an exigent circumstance or an inability to consult with Ms. Doe further that could justify [Lawyer’s] failure to discuss the timing and manner of notifying her husband, especially when he was aware of the presence of domestic violence, The record supports the Panel’s finding [Lawyer] did not undertake his duty to engage in a reasonable consultation about Ms, Doe’s objectives, which necessarily would have entailed discussion about the timing and manner of service. He then took it upon himself to discuss the divorce with Jane Doe’s husband without regard to her safety concerns and objectives. The court finds no error in the Panel’s determination that [Lawyer] violated M.R.P.C. 1.4(a).”
My usual caveat: I have no idea how Vermont’s Disciplinary Counsel, Hearing Panels, or Supreme Court would analyze similar facts.
That said, the obvious takeaway is that divorce lawyers who know that a client is an abuse victim have a duty to consult with the client before serving the abuser with a divorce complaint. More broadly, the Maine case serves to remind all lawyers that serving a complaint or otherwise notifying the other side of a client’s claims could adversely impact the client. And, therefore, there are situations in which the client must be consulted about service.
As always, be careful out there.