Mixing Business And Personal Did Not Violate Rules (But With A Dissent)
The Maryland Court of Appeals has agreed with the trial judge that an attorney engaged in no misconduct in his alleged solicitation and representation of a client.
The attorney first met the client in a courthouse where she was filling out papers for a protective order.
They became Facebook friends and subsequently entered into an attorney-client relationship. They then stopped being Facebook friends.
The court found that none of Bar Counsel’s array of charges were proven.
As to the alleged solicitation of business
Although Respondent initiated a conversation with Ms. Coates, informed Ms. Coates that he was an attorney, handed her his business card, discussed her case, and the two exchanged telephone numbers, Petitioner has failed to show, clearly and convincingly, that Respondent’s motive in doing so was for pecuniary gain. Indeed, the hearing judge found that Respondent declined to represent Ms. Coates in October 2008, when the two first met. That Respondent sent Ms. Coates an email two months later in which he detailed a case strategy does not indicate clearly that he was attempting to solicit business from Ms. Coates when the two individuals met. Moreover, Respondent and Ms. Coates did not enter into a retainer agreement until fifteen months after meeting in-person. The hearing judge made no finding that the circumstances were overwhelming or unduly influential for Ms. Coates. Respondent’s conduct appears to have arisen from his desire to provide Ms. Coates with information, as opposed to a desire to represent her. Where an attorney refuses initially to represent the prospective client, does not insist that he be retained immediately, and the circumstances do not indicate that the prospective client felt undue pressure to seek representation, the facts do not support the conclusion that MLRPC 7.3(a) has been violated.
As to an allegedly improper romantic motive
To bolster the contention that Respondent sought to develop a romantic relationship with Ms. Coates, Petitioner relies on several alleged interactions between Respondent and Ms. Coates, specifically: (1) Facebook communications; (2) Respondent’s offers to have Ms. Coates use his rental property; (3) Respondent’s unexpected, late-night visit to Ms. Coates’s home; (4) Respondent’s request for a back massage; (5) Respondent’s comments about Ms. Coates’s attire; (6) Respondent’s offer to help Ms. Coates move out of her marital home; and (7) Respondent’s lying on Ms. Coates’s bed following the move–which Bar Counsel refers to as “the culmination of months of his subtle prodding to become closer to [Ms. Coates].” Petitioner avers that each of these instances are supported by evidence contained in the record below, however, many of the allegations upon which Bar Counsel relies were not established as true by the hearing judge. Moreover, many of the allegations Bar Counsel relied upon, both before this Court and before the hearing judge, were in dispute. With regard to the allegations not in dispute, Bar Counsel failed to demonstrate how those facts were indicative of Respondent’s attempt to develop an improper, romantic relationship with Ms. Coates.
In sum
…a lawyer has discretion to communicate with clients or prospective clients through social media. Likewise, assisting or offering to assist a client or prospective client in obtaining shelter or in moving from one residence to another is not per se violative of the Maryland Lawyers’ Rules of Professional Conduct. Whether or not the attorney violates the Rules of Professional Responsibility will depend upon the facts and circumstances of each case. When a lawyer, in the exercise of discretion, involves him or herself in conduct that is unnecessary to the attorney-client relationship or exceeds the bounds of the attorney-client relationship, however, he or she runs the risk that his or her exercise of professional judgment may be found to be both unreasonable and subject to the disciplinary process.
Judge Watts (joined by two colleagues) dissented and would find conduct prejudicial to the administration of justice
Specifically, evidence offered by Bar Counsel indicated that Merkle, among other things: (1) “commented on” Coates-Black’s attire while she was visiting him in his office, and later described Coates-Black’s attire as having a “plunging neckline” and being “quite revealing from the middle”; (2) sat on the same side of his desk as Coates-Black while she was visiting him in his office and asked her to rub his shoulders, prompting Coates-Black to decline and move to the opposite side of Merkle’s desk “to keep [him] away from” her; (3) attempted to visit Coates-Black at her apartment after 10:00 p.m.; and (4) offered, on multiple occasions, to let Coates-Black use an apartment in a building that he owned. Despite this evidence, and despite the serious allegations of improper conduct that Coates-Black raised at the hearing, the hearing judge inexplicably failed to make any findings of fact whatsoever concerning these matters. The allegations were well-detailed and described Merkle’s alleged improper and unseemly conduct toward Coates-Black, yet the hearing judge did not address or even mention them.
She further would find that the trial judge’s conclusion that the client was not vulnerable was clearly erroneous.
The dissent also expressed concern about the attorney’s characterization of himself as a “father figure” to the client. (Mike Frisch)