Conflicts And Kelly Commander

The Louisiana Attorney Disciplinary Board agreed with a hearing committee that a former client conflict of interest had not been proven.

After his termination by a homeowners association, the attorney had drafted a letter on behalf of association board member Kelly Commander and then referred her to unconflicted counsel

During his representation of the HOA, Respondent advised it on a variety of legal issues including environmental issues and enforcing various restrictions. See e.g. Ex. ODC-5, ODC-6; Transcript, p. 117. Respondent did advise the HOA regarding bylaws and amendments to them on occasion. ODC-5, ODC-6, Transcript pp. 35-36. However, there is no evidence that he advised the HOA regarding any amendment pertaining to the removal of Board Members. Multiple witnesses testified at the hearing that Respondent did not advise the Board on this subject, nor do the minutes of Board meetings indicate such. Transcript, pp. 37, 71, 116, 142; Ex. ODC-5, ODC- 6, ODC-7, ODC-8, ODC-9. Advising the HOA on various other amendments to the bylaws is not substantially related to his representation of Ms. Commander, which concerned amending the bylaws for a particular purpose – to remove a member of the Board. It is reasonable to, and the Hearing Committee in fact did, disassociate those two topics from each other. ODC argues that Respondent’s representation of Ms. Commander was substantially related simply because Respondent advised the HOA regarding the bylaws in general, regardless of the substance of the advice and its relation to the matter involving Ms. Commander. This argument is not consistent with Walker. As Walker illustrated, the fact that a lawyer is representing a subsequent client against a former client in the same type of matter the lawyer handled for the former client does not alone create a substantial relationship. In that case, the attorney defended the Department of Transportation in road hazard claims, and subsequently represented private plaintiffs in road hazard claims against the Department after his resignation from government service. Walker, 807 So.2d at 59. The Court determined that his cases against the Department were not sufficiently interrelated in fact and substance to any case he worked on for the Department. Id. at 62. Here, Respondent’s representation of Ms. Commander is not so interrelated in both fact and substance to his representation of the HOA that a reasonable person would fail to disassociate them.

 Despite ODC’s assertion to the contrary, Respondent’s decision to refer the matter to Mr. Pierson is not an attempt to use his fellow attorney as a puppet, but rather a step taken to avoid any potential conflict. Respondent independently examined this matter to determine if any conflict existed before taking on the representation. Ex. R01. Despite coming to an independent conclusion that there was not a violation of Rule 1.9(a), Respondent consulted with an attorney specializing in ethics, who informed him that there may be a violation of the Rule, but did not state with any certainty that there had been such a violation. Ex. R05; Transcript pp. 28-31. The Committee noted that consulting with another attorney does not indicate the presence of an actual conflict: “His due diligence in seeking advice as to a possible conflict should not be used against him. To do so would discourage attorneys from seeking outside counsel on ethics and professionalism matters.” Hearing Committee Report, p. 2. After undertaking that effort, Respondent decided to refer Ms. Commander to another attorney to avoid the potential of a conflict. While he perhaps should have referred the matter to Mr. Pierson right away, his failure to do so does not rise to a violation of the Rules of Professional Conduct.

 The board dismissed the charges and assessed costs against the Office of Disciplinary Counsel. (Mike Frisch)