Divorce Lawyer Is Rebuked for Using Client To Finalize Deal With Represented Opponent

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By Joan C. Rogers  

The Wyoming Supreme Court Jan. 6 reprimanded a lawyer who crafted a settlement agreement for his client in a divorce case to present to her husband behind his lawyer's back (Bd. of Professional Responsibility v. Melchior, Wyo., No. D-11-0005, 1/6/12).

The court approved a disciplinary board's finding that the lawyer's conduct violated Wyoming Rule of Professional Conduct 4.2, which in most instances prohibits a lawyer from directly contacting anyone who is represented by counsel in the matter.

The case is noteworthy in addressing the same subject as a recent ABA ethics opinion that has sparked controversy—and reaches the opposite conclusion. The ABA ethics committee is planning to discuss in early February whether to retreat from the opinion's permissive interpretation of Model Rule 4.2.

Negotiations in Divorce Case

As described in the professional responsibility board's report and recommendation, the disciplinary charges against D. Stephen Melchior grew out of his representation of a wife in a divorce case.

When Melchior filed the wife's divorce complaint, the husband hired attorney Deborah Ford Mincer to represent him. While the case was pending, the wife got the husband to sign a settlement agreement that Melchior had edited. Melchior never informed Mincer that the husband and wife were meeting on their own to talk about settlement.

When the husband told Mincer that he had signed some documents, she called Melchior, requested that he not file the agreement, and asked for a copy.

Although Melchior said he would not file the documents, he later changed his mind and did so, having concluded that the settlement agreement was valid and enforceable because it was negotiated directly between the divorcing spouses without his involvement. Mincer then filed a complaint with bar counsel.

Can't Go Through Client

According to the disciplinary board's report, Melchior acknowledged that his conduct violated Wyoming Rule of Professional Conduct 4.2, which provides that in representing a client “a lawyer shall not communicate about the subject of the representation with a person or entity the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.”

The board's report notes that according to the rule's Comment [3], Rule 4.2 applies even though the represented person initiates the communication or consents to it, and Comment [4] states that a lawyer may not make a communication prohibited by the rule through the acts of another.

Melchior admitted that he violated Rule 4.2, the report says, “when he created and gave to his client a divorce settlement agreement and a confidential financial statement at a time when Respondent knew or reasonably should have known that there was a substantial risk that she would deliver them to the husband, whom Respondent knew was being represented by counsel.”

Melchior also agreed, the board said, that his conduct violated Rule 8.4(d) (conduct prejudicial to the administration of justice). The lawyer violated this rule, the report states, when he presented the settlement agreement to the court for enforcement after assuring Mincer that he would not file it without her approval.

Public Censure

According to the board's report, Melchior expressed remorse for the poor judgment he showed in committing these violations, and he agreed to the issuance of a public censure.

The board recommended censure as the appropriate sanction under the ABA Standards for Imposing Lawyer Sanctions, along with payment of costs.

In a brief order signed by Chief Justice Marilyn S. Kite, the supreme court said that after a “careful review” it approved and adopted the board's report and recommendation. Accordingly, it ordered that Melchior receive a public censure for his conduct.

Keith S. Burron of Associated Legal Group, Cheyenne, Wyo., represented Melchior. Bar Counsel Mark W. Gifford, Cheyenne, represented the Wyoming State Bar.

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Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8qdmkd.

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