Rule on Clients With Diminished Capacity Didn't Justify Unauthorized Filing of Lawsuit

By Joan C. Rogers  

The ethics rule on representing impaired clients did not authorize a lawyer to file a medical malpractice lawsuit on behalf of a cancer patient who the lawyer believed was being pressured by the local medical community not to sue, the Vermont Supreme Court made clear Nov. 29 (In re Rockwell, Vt., No. 2011-374, 11/29/11).

Finding that the lawyer had no basis for invoking the emergency exception in the rule, the court emphasized that she filed the purported client's complaint unilaterally without the patient's knowledge or authorization—and refused to drop it when the patient's actual counsel moved to dismiss. The lawyer's actions were prejudicial to justice and her “unsupported and apparently irrational” assertions warrant placing her on interim suspension, it decided in a per curiam order.

Unilateral Filing

Xavier Rockwell filed a complaint in Vermont state court in August 2011 on behalf of a plaintiff and the plaintiff's two children, alleging that certain health care providers had committed medical malpractice by not correctly diagnosing the plaintiff's breast cancer.

Attached to the complaint was an “Attorney Verification” stating that it was signed by Rockwell “and not by my client(s)” under the authority of Vermont Rule of Professional Conduct 1.14. The authorization declared that the plaintiff was “currently incapable of bringing this lawsuit in her weakened condition and against negative influence.”

Also attached was a “Certification,” signed by Rockwell, stating that she had performed legal work for the plaintiff in the past and had discussed the malpractice case with her, that the plaintiff had indicated she was interested in pursuing the claim, and that the plaintiff was under “pressure” from the “local medical community” not to sue.

Rockwell also stated that she had asked two medical malpractice attorneys to encourage the plaintiff to file suit without success, and that the plaintiff's “financial situation would be seriously damaged” if the lawsuit were not filed. Rockwell acknowledged that the plaintiff had not specifically approved the filing of the complaint.

In response, attorney Bret P. Powell filed an appearance on behalf of the plaintiff and an emergency motion to dismiss and expunge the complaint. Powell submitted an affidavit from the plaintiff stating that she had not retained Rockwell or authorized her to file the complaint, that she was not under any disability, and that Rockwell had refused her request to dismiss the action.

The trial court, finding that the plaintiff had not hired Rockwell or authorized her to file the complaint, granted the motion to dismiss.

Opposition to Dismissal

In subsequent filings trying to change the judge's mind, Rockwell said that before filing the lawsuit, she had asked Powell to encourage the plaintiff to sue, and that his motion to dismiss was against the plaintiff's interests. Rockwell also asserted that the plaintiff's affidavit was “suspect for many reasons” and that the “pressure” on the plaintiff not to file suit had “intensified” due in part to Powell's “overzealousness … to destroy her lawsuit.”

Rockwell contended that Powell's motives were “extremely suspect,” that his allegations in the motion to dismiss were “untrue and despicable,” and that he had “acted unethically.”

The trial court stuck by its decision to dismiss the complaint, and referred the matter to the Vermont professional responsibility board. Disciplinary counsel then petitioned the state supreme court for Rockwell's immediate interim suspension.

Emergency Provision Not Satisfied

Vermont's Rule 1.14(d) allows a lawyer to take legal action in the absence of an attorney-client relationship in an “emergency where the … interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm,” provided that the person or a representative has consulted with the lawyer, and the lawyer “reasonably believes that the person has no other lawyer, agent or other representative available.” In addition, the lawyer is authorized to take legal action “only to the extent reasonably necessary” and must “take steps to regularize the relationship or implement other protective solutions as soon as possible.” 

In its order, the court found that Rockwell's filing of the medical malpractice lawsuit was not authorized by Rule 1.14(d). Although she knew that the plaintiff was reluctant to file a malpractice action, the lawyer went ahead and filed suit without the plaintiff's knowledge or authorization, it pointed out. Rockwell's belief that the plaintiff's reluctance resulted from pressure not to sue “does not begin to approximate the ‘seriously diminished capacity'” required for emergency action, the court said. It also emphasized that the plaintiff had her own counsel at the time the lawsuit was filed.

The court found that Rockwell's responses to the motion to dismiss and the petition for interim suspension raised serious concerns about her fitness to practice. She not only opposed the motion and attacked the plaintiff's affidavit without any reasonably evident basis for doing so, but also impugned the motives and ethics of the plaintiff's lawyer and made other “unsupported and apparently irrational assertions,” the court stated. For example, it said, Rockwell suggested that Vermont courts disrespected her because she was “associated with black lawyers” through her attendance at Howard University law school and that she had to file the malpractice lawsuit because of the bar's anti-Semitism directed against the plaintiff.

Rockwell's filings show that she seriously misapprehended Rule 1.14 and failed to appreciate the harm caused by her conduct, the court said. Finding that her actions constituted conduct prejudicial to the administration of justice under Rule 8.4(d) and a substantial threat of serious harm to the public, the court placed Rockwell on interim suspension.

[The court amended its rules on disciplinary proceedings, effective Oct. 31, 2011, to provide that interim suspension proceedings and orders are public. The goal of this amendment is to protect the public, according to the accompanying reporter's note. See and Rules/PROMULGATEDAmendmentAO9Rules12_13_18.pdf.]

Disciplinary Counsel Michael Kennedy, Burlington, Vt., represented his office. Xavier Rockwell, Brattleboro, Vt., represented herself.

Full text at .  


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