Duty Of Confidentiality To Former Client
A three-month suspension has been ordered by the Vermont Supreme Court Professional Responsibility Program based on findings that an attorney violated the duty of confidentiality to a former client.
The decision is not final and can be appealed, as noted in this order denying a stay.
The former client had been represented by the respondent in an attempt to reopen a divorce. The respondent claimed a substantial unpaid fee for his services when the representation ended.
At issue was respondent’s role in the sale of property awarded in the divorce
In 2018, Former Client listed the Springfield property for sale. Husband and Wife own and reside on an adjacent lot. Husband and Wife appreciate living next to an undeveloped lot. Nervous that a buyer might build houses on the Springfield property, Husband and Wife eventually decided to make an offer.
Respondent represented Husband and Wife while claiming an interest in having his outstanding fees paid out of the closing. Shortly prior to the scheduled closing he filed a lien on the subject property.
These developments complicated and delayed the closing.
The former client was owed a continuing duty as to confidential information and the fact that the prior proceeding were in the public record did not negate the former client obligations
In other words, with respect to Respondent’s argument that the information he revealed about his prior representation of Former Client was “public record,” he might bootstrap that argument to a defense to an allegation that he violated Rule 1.9(c)(1), but it is not relevant to Disciplinary Counsel’s allegation that he violated Rule 1.9(c)(2). The omission of “generally known” language from subsection (c)(2) shows an intent not to allow the defense where there is disclosure to a third party.
Finally, even assuming the “generally known” defense were somehow engrafted onto subsection (c)(2) – the weight of the case law and ABA Formal Opinion 479 are compelling authority in support of the proposition that information is not generally known simply because it is public record.
With the law in mind, it is clear that Respondent violated Rule 1.9(c)(2). Respondent revealed information relating to his prior representation of Former Client to Husband, Wife, Attorney Polidor, and the Superior Court. The revelations included that the divorce was contentious, “ugly,” and that Respondent was not pleased with the outcome. The revelations included the very motivation behind Former Client’s attempt to reopen the divorce: Ex-Spouse’s inheritance. Finally, the revelations included Respondent’s invoices that detailed work performed for Former Client and the amount of Former Client’s unpaid bill. Other than Respondent’s own intent to collect the bill, nothing in the Rules of Professional Conduct permitted Respondent to reveal information relating to his representation of Former Client. Therefore, the panel concludes that the evidence clearly and convincingly establishes that Respondent violated Rule 1.9(c)(2).
The sanction analysis focused on his intent
Respondent violated the rules. Yet, his mindset was not as egregious as in the cases in which lawyers were deemed to have acted with intent. He did not intentionally choose to do wrong. Rather, Respondent expected Former Client’s sale proceeds to be escrowed, with the amount owed to him to be resolved later by the Superior Court. While mistaken as to the control he exercised over the situation, Respondent never intended to derail the closing. He believed that, in the end, he would “waive” the lien, thus allowing the closing to proceed.
And potential and actual harm
…perhaps the most significant injury to Former Client was not addressed by Disciplinary Counsel or Respondent. Respondent’s misconduct forced Former Client to choose
between (1) paying a bill that he did not believe was owed; or (2) exposing himself to a breach of contract claim in an entirely unrelated matter. Such an involuntary method of resolving a fee dispute smacks of coercion and constitutes actual injury to Former Client.
The opinion compares past decisions
In sum, Respondent’s misconduct is more serious than was at issue in Adamski, not as egregious as the conduct at issue in Adams, McCoy Jacien, or Neisner, and similar to misconduct that resulted in a 3-month suspension in a case that involved mitigating factors of substantially greater weight than here. On balance, and consistent with the ABA Standards, a 3-month suspension is an appropriate response to Respondent’s misconduct.
(Mike Frisch)