Legal Ethics

Ex-Dinsmore partner wins dismissal of sex-with-client ethics charges, despite accepting sanction

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The former managing partner of Dinsmore & Shohl’s Charleston, West Virginia, office urged the state supreme court to accept a recommended 90-day suspension against him stemming from sex with a one-time client, but the court disregarded his entreaty.

Instead, the court dismissed the ethics charges against the lawyer, John Hussell, in a 3-2 decision, the West Virginia Gazette reports.

The majority opinion (PDF) by Justice Brent Benjamin said Hussell’s sexual relationship with the client didn’t begin until at least three months until after he was fired from representing the woman and her husband in an estate planning matter.

A hearing panel subcommittee had found otherwise, citing a letter signed by the woman and her husband that consented to a joint representation. The letter was signed on Jan. 14, 2010, four days after the husband told Hussell he was being fired from the representation.

Dissenting Justice Allan Loughry criticized the majority’s “virtually unprecedented decision,” saying it “completely disregards the factual findings” made by the hearing panel subcommittee and “casually discards the implications of Mr. Hussell’s consent to the recommended disposition.”

“The majority’s result-oriented opinion is nothing more than a work of fiction that will assuredly send a message that this court is more interested in protecting its own than policing its own,” Loughry wrote in his dissent (PDF). “The image of the West Virginia legal system will once again be sullied as ethical considerations are cast aside along with any concerns for protecting the public.”

According to the majority opinion, a couple identified as “James L.” and “Carolyn L.” hired Hussell for estate planning in September 2009, but James fired Hussell on Jan. 10, 2010, because of concerns over the nature of the relationship between Hussell and Carolyn.

The two-month sexual relationship between Hussell and Carolyn began in March 2010 and ended in May 2010, the majority said. Nothing in the record refutes Hussell’s assertion that he performed no further legal services for James or Carolyn after January 10, 2010, according to the majority.

A second dissenter, Justice Menis Ketchum, agreed with the majority’s view on the timing of the events, but said he would impose the suspension because Hussell had agreed to it.

“There will be many lawyers who will grouse that the majority opinion took it easy on Mr. Hussell,” Ketchum wrote (PDF). “Nothing is farther from the truth. There is absolutely no evidence that Mr. Hussell did any legal work or represented James and Carolyn L. during the time he had an extramarital affair with Carolyn L.”

Ketchum, however, identified two “big” mistakes by Hussell.

After learning James and Carolyn were separating, he sent both of them the letter stating that he could represent both parties if they consented. Within the week, Hussell was fired from the representation. “Hussell made another big mistake,” Ketchum wrote, “in not confirming his termination in a letter to James and Carolyn L.”

Twelve days after his firing on Jan. 10, 2010, Hussell received the letter from James and Carolyn assenting to the joint representation. It was dated Jan. 14, 2010. “Hussell did not act on the letter,” Ketchum wrote, “because he had been fired.”

“People can speculate all they want,” Ketchum wrote, “but the majority opinion isn’t off the mark. The undisputed evidence in the record is that the extra-marital affair between Hussell and Carolyn L. did not start until approximately three months after Hussell was fired.”

Loughry, however, asserted that Hussell was still representing James and Carolyn during the sexual relationship. He cited testimony by James that he signed the joint representation document because he didn’t have an estate planner, and Hussell might need to do some more work for them. Loughry also said the majority ignored the strongest evidence of an attorney-client relationship—the joint representation agreement.

The majority “illogically suggest’s] that an attorney must perform perpetual services for all clients, without pause, lest the attorney-client relationship be deemed to have ended,” he wrote. “Moreover, it suggests that a client must constantly demand updates and further services for fear that any lull in the relationship may be construed as a termination sufficient to allow the attorney to violate their interests and trust.

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