Ethics and Professional Liability – Georgia Bar Rule Case Studies

Posted June 9, 2014

Part 7 – Client Engages in Illegal Activity

This is the final entry in an article series that covered the wide variety of case studies we review at our Attorney Ethics and Professional Liability CLE seminars. You can read the other case studies in my blog, including disparate topics such as illegally [or questionably] obtained evidence and threat of criminal prosecution. Part 7 discusses how to proceed when you believe your client has broken the law.

Case Study #7 – What do you do when you believe your client has engaged in illegal activity?

Your client visits your office one Monday morning without an appointment and informs you that her boyfriend, the father of her child, was physically violent with her over the weekend. She responded by hitting him back and a full brawl ensued. She wants to ignore her role in the fight and instructs you to obtain an ex-parte restraining order as soon as possible.

How do you deal with the fact that your client also participated in the violence? How do you handle this with your client, as well as with the court?

Implications beyond just family law

While this particular example falls under domestic law practice, similar situations may occur in other practice areas:

One business partner breaks in to gather evidence before suing the other partner.
A company steals their competitor’s technical specs to prove patent infringement.
An employee installs spyware to prove a harassment claim against the employer.

Here is what the Georgia Bar Rules say

In addition to the general 8.4 Misconduct catch-all, three Bar Rules cover this hypothetical situation:

Rule 1.6 (b) Confidentiality of information
Rule 3.1 Meritorious Contentions
Rule 4.4 Respect for the Rights of Third Persons

handcuffs The bottom line is that the client responded in kind, and the judge needs to hear the whole story in an ex parte hearing – which probably negates the need for the hearing. By claiming that only one party participated in the violence, you’re getting yourself into dangerous territory. Note that if there is the threat of more violent action from either party, you are obligated to report it to prevent harm or damage regardless of your client’s wishes. Finally, some of the other scenarios listed above would also violate the other party’s legal rights, causing trouble for your client, and you too if you participate or let it happen.

But how do we keep the client?

At a couple of our seminars, the case study conversation took an interesting turn. The attorneys wanted to stay within the boundaries of the Bar Rules, but didn’t want to run off the business. As an example, the lawyers asked if an argument could be made for extenuating circumstances. If the boyfriend hit first, couldn’t the client’s response have been defensive? We decided that an acceptable course of action would be to serve the boyfriend, take it to court, and see what happens. The lawyer should also advise the client that she can’t lie, or the lawyer could be forced to withdraw. Hopefully the boyfriend will at least think twice the next time.

Don’t take an unnecessary risk, ask for assistance

Many of these situations can become very complicated as you weigh the value of the client relationship against your ethical obligations as an attorney. Before you react, consider seeking assistance from independent, experienced counsel.

If you can’t make it to a seminar, please join our LinkedIn group and participate in the online discussion – Attorney Ethics and Professional Liability.

Douglas Chandler