Posted May 18, 2012 05:19 pm CDT
A longtime Kansas lawyer has been suspended from practice for one year, due in part to his concurrent representation of two spouses.
One (the wife) was a suspect in a criminal arson investigation concerning the couple’s home and had been videotaped purchasing accelerants on the day of the fire, according to an order (PDF) Friday by the Kansas Supreme Court.
Meanwhile, attorney Brian R. Johnson also agreed to represent the husband in determining whether he should make a fire insurance claim, as an innocent spouse.
Johnson admittedly did not obtain written, informed consent in advance to the potential conflict from the couple, who are referred to in the opinion as Mr. H and Mrs. H. And his arguments that there was no actual conflict, as events transpired, and that he obtained a good result for both were not, the court wrote, “even minimally persuasive.
“A lawyer is not permitted to risk each of his or her client’s rights to disinterested, competent, timely legal advice on the chance or in the hope that a later factual discovery or crafty legal argument will eliminate a concurrent conflict between the clients,” the opinion continues. “When respondent took on representation of Mr. [H.], he owed him all of the same duties of loyalty and care that respondent already owed Mrs. [H.]; and, as far as respondent knew at the time, the spouses’ factual circumstances and resulting legal positions were widely divergent and at least potentially at dramatic odds. Civilly, respondent was still entertaining the possibility that Mr. [H.] could seek insurance reimbursement for the fire damage, regardless of Mrs. [H.’s] conduct. Criminally, respondent knew that law enforcement had highly incriminating circumstantial evidence against Mrs. [H.].”
Further, Johnson accepted an instruction from the wife not to reveal to her husband even though it might have been relevant to the legal position of Mr. H, the attorney’s client, the court writes. “This particular evidence demonstrates that there was not merely a substantial risk that respondent’s representation of one spouse would be materially limited by his representation of the other; the risk was fully realized.”
Hat tip: Legal Profession Blog.