Public Censure For Conflict By “Intermediary”

The Wyoming Supreme Court imposed a public censure of an attorney who engaged in a conflict of interest in representing a couple (retired University of Nebraska faculty members) in a boundary dispute.

According to the Board on Professional Responsibility, he failed to disclose his close relationship with the potential adverse party

Before he undertook to represent Ganfield and Sudrla, Respondent did not communicate to them the full nature and extent of his relationship with David Cole and his family and business interests.

Respondent did not fully explain to Ganfield and Sudrla the material limitations to Respondent’s ability to fully represent Ganfield and Sudria arising out of Respondent’s relationship with David Cole.

Respondent did not obtain from Ganfield and Sudrla any written informed decision signed by them to Respondent’s representation notwithstanding the conflict of interest arising from Respondent’s attorney-client relationship with Cole.

 He met with Cole

Respondent never discussed with Ganfield and Sudria any proposed simultaneous representation of Cole by Respondent, nor did Respondent ever propose to act as an intermediary in the negotiations between the adverse parties under then-applicable Rule 2.2(a). Respondent did not obtain informed written consent (decision) of Ganfield and Sudrla, in a writing signed by them, to his simultaneous representation of Cole or to Respondent acting as an intermediary.

The Nebraska clients fired him and

About six weeks later, Respondent wrote a letter dated June 11, 2008 addressed jointly to both Cole and Ganfield. In this letter Respondent described the existing dispute and stated that an action would have to be filed by Ganfield and Sudrla against Cole to quiet title in Ganfield. He stated that “In my endeavors” to resolve the matter without litigation, “I have created a severe conflict of interest for myself. . . I cannot represent the parties in any of this litigation as I have put myself in a position of being a “negotiator” rather than a “litigator” in the issues.”

The board found both a conflict and failure to communicate

Before undertaking representation of Ganfield and Sudria in the boundary dispute adverse to Cole, Respondent therefore had duties: (a) to communicate to Ganfield and Sudrla as prospective clients a description of the nature and extent of Respondent’s pre-existing relationships with Cole; (b) to inform Ganfield and Sudrla fully regarding material limitations on his ability to represent Ganfield and Sudrla arising from his relationship with Cole; and (c) to obtain informed written consent from Ganfield and Sudrla in a writing signed by them.

Rule 2.2 of the Wyoming Rules of Professional Conduct has since been rescinded, however, under Rule 2.2 as it applied at the time, if Respondent intended to represent the adverse parties in the boundary dispute simultaneously, in the role of an intermediary, Respondent was required to first consult “separately with each client concerning the implications of the common representation,” and to first obtain “each client’s informed decision to the common representation, in writing signed by the client.”

And

The pleadings filed herein also show that Respondent’s son, and his step-son-in-law each represented Cole (the adverse party to Ganfield and Sudria) at different times. The Board concludes there exists an adequate factual basis for the Board to also approve the parties’ stipulation that Respondent be ordered to make reasonable inquiry in the future when screening new matters to identify and clear potential conflicts associated with adverse representation of parties among lawyers closely related by blood or marriage.

The attorney had been disbarred in 1995 and reinstated (after engaging in unauthorized practice) in 2004. (Mike Frisch)