Dear Fellow Members:
Below you will find a link to an online copy of the Maryland Rules of Professional Conduct. We have provided this link in hopes of making your search for answers to your legal ethics questions easier. As always, if you need additional guidance, please do not hesitate to call the Legal Ethics Committee hotline at the number listed in the current issue of your bar newsletter.
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Lawyer Suspended For “Emotional Blackmail”
Ethics decisions are usually reassuring. Often times, the unethical conduct is so venal, that a reasonable lawyer cannot imagine acting in such a fashion. Even if sanctionable conduct is not venal, the expectation is that a court’s analysis will provide a standard to which lawyers can conform their future conduct. The ultimate feeling upon reading most opinions is confidence that lawyers should be able to avoid an ethical pitfall personally.
Sometimes, however, a court takes a lawyer’s license and the impression on reading the decision can be more like, “Um, could I break the rules that way?” Those decisions are worthy of careful scrutiny. Recently, the Kansas Supreme Court took a lawyer’s license for violating rules substantively identical to the Maryland Rules of Professional Conduct.1 The court punished the lawyer for sending a communication the court deemed to constitute “emotional blackmail.” Thus, the issue is framed: where is the line of propriety in a lawyer’s communications with others, particularly self-represented adverse parties?
The lawyer was representing a biological father who opposed the adoption of his infant daughter. The mother had already executed papers, while she was expecting, by which she consented to the adoption. At her deposition, the mother, who was unrepresented, testified that she was not prepared to be a mother. She also testified that the whole adoption process was emotionally exhausting.
Two days later, the father’s lawyer wrote to the mother. He appealed to her emotions. He urged her to “stand up” and “do what’s right” by her daughter. His entreaty was persistent and detailed. He attached a form by which she could revoke her consent to the adoption. He said the form could effectively stop the adoption. The mother did not sign the document.
At the adoption hearing, the adoptive parents’ lawyer brought the communication to the court’s attention. The court did not make any ruling on it. The court took the ultimate issue under advisement. The next day, the father’s lawyer reported himself to the grievance authority. He conceded he may have violated the rules because he had offered legal advice to an opposing party.
The Kansas Supreme Court agreed there was a violation but on different grounds. It held that the lawyer violated rule 8.4(d) (conduct prejudicial to the administration of justice)2 and 8.4(g) (conduct adversely reflecting on the lawyer’s fitness to practice law).3 The court suspended his license to practice law for six months.
Violating Rule 8.4(d): The court found that the lawyer did four things that were prejudicial to the administration of justice. First, he knew the mother “did not want to revoke her consent to the adoption” and, by asking her to reconsider he “attempted to manipulate” her.
Second, he made a false statement in the communication. He told the mother that the adoptive parents did not want her at the hearing because that would not help their case. In fact, the adoptive parents had subpoenaed the mother to be there. The court deemed the fact material. The court found no evidence the lawyer knew the statement was false, but said his failure to fully investigate it was reckless and prejudicial.
Third, the lawyer made a false statement of law. He told the mother that there was a good chance the adoption could be undone if she signed the form. The lawyer did not consider a statute that provides consent is final when executed unless the consenting party proves that it was not freely given. The lawyer had no evidence that the mother’s consent was not freely given. So it was prejudicial for him to suggest there was a good chance executing the form could be effective.
Fourth, the lawyer prepared the legal form, which would dramatically affect the life of the mother. He never suggested that the mother get independent legal advice. Giving legal advice to an unrepresented party without suggesting she seek counsel was prejudicial.
Violating Rule 8.4(g): The court also concluded that sending the message adversely reflected on the lawyer’s fitness to practice law. He knew the mother “did not wish to change her mind and that the process was ‘emotionally exhausting’ for her.” Thus, his appeal to her emotions constituted emotional blackmail.
Some of the lessons are clear enough. Do not make misrepresentations. Do not mislead unrepresented parties about your role. You could debate the materiality of some of the conduct. The lawyer was wrong about the adoptive parents wanting the mother at the hearing. But did that make a difference? He did not advise the mother to get her own lawyer. But she knew he was adverse and that the proceeding was important. Nonetheless, the standard of conduct that the court expects stands out.
That is not so much the case where the manipulation and emotional blackmail is concerned. The court held that entreating the mother to change her mind when the lawyer knew she did not want to constituted manipulation prejudicial to the administration of justice. Seemingly, every legal dispute involves at least two parties who find their opponent in need of “manipulation.”
In addition, the court held that communicating with the mother and invoking morality and principles when she was emotionally exhausted amounted to blackmail. There is no analysis by which the court reached the conclusion, or by which a lawyer might gauge future conduct. There is only the conclusion.
Of course, the specific factual context of the case likely played a significant role in determining the outcome. The mother was young - 18 years old. The lawyer had prior grievances. The lawyer also acted brashly during the grievance process.4 This is all detailed in the penalty section of the written opinion. Reading it, you can imagine how no one would be overly concerned that this lawyer suffered a consequence.
On the other hand, consideration of whether a violation has occurred should be reached before consideration of any discipline to be imposed. Conduct found to be violative of the rules should be able to stand, independently, as an objective standard of conduct for everyone.
So lawyers are left to wonder how to act in similar but distinct circumstances. Where is the line drawn for ethical communications with others, and how far is too far? Would the result be different if the matter was not domestic, or the opposing party not so young or self-represented? Is every emotionally exhausted opponent due special consideration? Do they need to complain of it, or should a lawyer figure it out? Is this only for parties without a lawyer?
Catchall rules like KRPC 8.4(d) and (g) create a fuzzy line between good and bad conduct. Then, decisions like this impose the professional penalties for crossing it. Given the consequences, lawyers learn not to go anywhere near the line. This is intuitively appealing. After all, who would say in polite company that it is fine to go right to the edge of impropriety? At the same time, though, we charge lawyers with a duty to represent clients with zeal. Clients are entitled to a lawyer who will communicate with the opposing party, even if he or she may be emotionally fragile.
Ultimately, decisions like this provide more unease than guidance on how to act. Lawyers learn little other than that we have competing obligations that can be difficult to balance. But that realization offers a relevant take-away.
No lawyer faces a difficult ethical choice alone. There are state and county bar association ethics committees, including in Montgomery County. The committee will listen and give advice on prospective conduct. If this lawyer had made such a call, it is possible, thanks to feedback or continued reflection, that he would have concluded the communication, as written, was not his best option.
Even if an ethics committee had somehow approved the letter, having made such a call, the lawyer would have demonstrated some measure of good faith. Bar counsel may have considered this fact when charging him. And the court might have considered it at the penalty phase. A lawyer with a clean record who did this (and refrained from personally disparaging bar counsel) may not have found himself suspended at all.
2 The same as MRPC 8.4(d).
3 Substantively the same as MRPC 8.4(b).
4 The lawyer personally criticized one of the grievance administrators. He said other lawyers did worse without getting punished. He admitted he did not prepare for the disciplinary hearing.
Edward Sharkey, Committee Member
Daniel L. Shea, Co-Chair
Samuel M. Shapiro, Co-Chair
Samuel M. Shapiro
Daniel L. Shea
March 19, 2015
April 16, 2015
May 21, 2015
June 18, 2015
*to be held in the lower level conference room of the Bar Association building
Meetings will be held at 4:30 p.m. on the 3rd Thursday of the month in the upstairs conference room of the Bar Association building, unless otherwise noted.