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Legal Ethics

Partner’s Affair With Client’s Wife Isn’t a Breach of Fiduciary Duty, Court Rules

Posted Jun 11, 2010 3:33 PM CDT
By Martha Neil

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It is undisputed that a partner of Baker Donelson Bearman Caldwell & Berkowitz had an affair with the wife of a client and longtime friend while representing the fired bank executive in a wrongful termination suit.

But without a showing that the affair adversely affected the representation the situation doesn't establish a breach of fiduciary duty, the Mississippi Supreme Court held yesterday. A lone dissenting judge said the duty claim presented issues of fact that should be determined by a jury concerning the impact of the affair on the attorney-client matter, reports the National Law Journal in an article reprinted in New York Lawyer (reg. req.).

"I was surprised that an attorney can have sexual relations with a client's spouse and that it's not a breach of fiduciary duty," said attorney Phillip Brookins of the Walker Group, who is representing the ex-Baker Donelson client.

Although the supreme court decision (PDF) yesterday reversed a trial court's denial of summary judgment to the defendants concerning the affair-related breach claim, the case is continuing to move forward concerning additional claims of alienation of affection and negligent infliction of emotional distress against the partner, who is a former president of Baker Donelson.

The firm is now dismissed from the case, because the supreme court said it couldn't be held liable for conduct outside the workplace that it knew nothing about. It previously faced empowerment, negligent supervision and vicarious liability counts.

The partner and his counsel couldn't be reached by the legal publication for comment.

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