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LAWYER DISCIPLINARY BOARD, Complainant,
JOHN E. ARTIMEZ, A MEMBER OF THE WEST VIRGINIA STATE BAR,
Submitted: September 6, 2000
Filed: October 27, 2000
|Morgan Palmer Griffith
Amie L. Johnson
Lawyer Disciplinary Counsel
Charleston, West Virginia
Attorneys for the Complainant
|Robert P. Fitzsimmons
Russell J. Guthrie
Fitzsimmons Law Offices
Wheeling, West Virginia
Attorneys for the Respondent
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE SCOTT did not participate in the consideration or the decision of this case.
1. A de novo standard
applies to a review of the adjudicatory record made before the Committee on
Legal Ethics of the West Virginia State Bar as to questions of law, questions
of application of the law to the facts, and questions of appropriate sanctions;
this Court gives respectful consideration to the Committee's recommendations
while ultimately exercising its own independent judgment. On the other hand,
substantial deference is given to the Committee's findings of fact, unless such
findings are not supported by reliable, probative, and substantial evidence
on the whole record. Syllabus point 3, Committee on Legal Ethics of
The West Virginia State Bar v. McCorkle, 192 W. Va. 286, 452 S.E.2d
2. Absent a showing of
some mistake of law or arbitrary assessment of the facts, recommendations made
by the State Bar Legal Ethics Committee . . . are to be given substantial
consideration. Syllabus point 3, in part, In re Brown, 166 W. Va.
226, 273 S.E.2d 567 (1980).
3. This Court is the
final arbiter of legal ethics problems and must make the ultimate decisions
about public reprimands, suspensions or annulments of attorneys' licenses to
practice law. Syllabus point 3, Committee on Legal Ethics of The West
Virginia State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671
4. In deciding on the
appropriate disciplinary action for ethical violations, this Court must consider
not only what steps would appropriately punish the respondent attorney, but
also whether the discipline imposed is adequate to serve as an effective deterrent
to other members of the Bar and at the same time restore public confidence in
the ethical standards of the legal profession. Syllabus point 3, Committee
on Legal Ethics of The West Virginia State Bar v. Walker, 178 W. Va.
150, 358 S.E.2d 234 (1987).
5. In disciplinary proceedings,
this Court, rather than endeavoring to establish a uniform system of disciplinary
action, will consider the facts and circumstances in each case, including mitigating
facts and circumstances, in determining what disciplinary action, if any, is
appropriate, and when the committee on legal ethics initiates proceedings before
this Court, it has a duty to advise this Court of all pertinent facts with reference
to the charges and the recommended disciplinary action. Syllabus point
2, Committee on Legal Ethics of The West Virginia State Bar v. Mullins,
159 W. Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by
Committee on Legal Ethics of The West Virginia State Bar v. Cometti,
189 W. Va. 262, 430 S.E.2d 320 (1993).
6. Lawyers should not engage in sexual relations with their clients' spouses in any type of case. Since no existing provision of the West Virginia Rules of Professional Conduct specifically prohibits a sexual relationship between a lawyer and his/her client's spouse, we find, at this time, that a lawyer's conduct in this regard is not, in and of itself, a breach of professional responsibility. Nevertheless, a lawyer's sexual relationship with his/her client's spouse may violate other rules of professional conduct.
This lawyer disciplinary proceeding arises from the respondent's, John E. Artimez's [hereinafter Mr. Artimez], intimate sexual relationship with his client's wife [hereinafter Mrs. Crook] and Mr. Artimez's attempt to settle his client's [hereinafter Mr. Crook] resulting claims of malpractice and professional ethics violations. Despite the purported settlement, Mr. Crook reported Mr. Artimez's conduct to the West Virginia Lawyer Disciplinary Board [hereinafter the Board]. In turn, the Board investigated Mr. Crook's claims and filed a statement of charges alleging, inter alia, that Mr. Artimez had violated Rules 1.7(b)See footnote 1 and 8.4(d)See footnote 2 of the West Virginia Rules of Professional Conduct.See footnote 3 Thereafter, Mr. Artimez and the Board presented agreed findings of fact and conclusions of law to the Board's Hearing Panel Subcommittee [hereinafter Panel]. Adopting these facts and legal conclusions, the Panel recommended, in accordance with the parties' stipulation as to discipline, that Mr. Artimez be publicly reprimanded and that he be charged with the cost of this disciplinary proceeding. Upon a review of the Panel's recommended decision, the parties' briefs, and the pertinent authorities, we adopt the lower tribunal's recommendation and hereby publicly reprimand attorney Artimez. We further agree that Mr. Artimez be held responsible for the costs of this proceeding.
In October, 1997, Mr. Crook discovered that Mr. Artimez
and Mrs. Crook were romantically involved. On October 20, 1997, Mr. Crook met
with Mr. Gellner and disclosed the relationship to him. At that time, Mr. Gellner
presented Mr. Crook with various options: (1) Mr. Crook could obtain new counsel;
(2) Mr. Crook could continue to be represented by Mr. Gellner, and his legal
fees would be reduced by 50% (Mr. Artimez's share);See
footnote 8 or (3) Mr. Crook could consult with new counsel about the prospects
of settling his personal injury lawsuit and/or pursuing the above-described
proposals, and the partnership would pay his associated consultation fees. Following
these discussions, Mr. Crook elected to continue to retain Mr. Gellner as his
attorney for a reduced fee.
Mr. Crook then threatened to sue Mr. Artimez for professional
malpractice and to file ethics charges against him. Through Mrs. Crook, Mr.
Artimez communicated his desire to settle Mr. Crook's claims against him. Mr.
Crook contacted Mr. Artimez regarding the proposed settlement, and Mr. Artimez
offered to pay him $5,000. Thereafter, Mr. Crook responded with a counteroffer,
to which Mr. Artimez agreed: (1) Mr. Artimez would pay Mr. Crook $12,000; (2)
all legal fees Mr. Crook had incurred with respect to his personal injury lawsuit,
which was then being handled by Mr. Gellner, would be waived; (3) Mr. Artimez
would voluntarily appear and testify in, or otherwise cooperate with, prospective
Ohio divorce proceedings between Mr. and Mrs. Crook;See
footnote 9 and (4) Mr. Crook would release Mr. Artimez from any professional
or civil liability, including agreeing not to file a cause of action against
Mr. Artimez for professional malpractice, report his conduct to the West Virginia
Lawyer Disciplinary Board, or do anything else that would jeopardize Mr. Artimez's
law license. Both Mr. Crook and Mr. Artimez signed a settlement and release
reflecting these terms in November, 1997, and December, 1997, respectively.
Ultimately, Mr. and Mrs. Crook separated again. At
that time, Mr. Crook reported Mr. Artimez's conduct to the West Virginia Lawyer
Disciplinary Board's Office of Disciplinary Counsel. The Board's Investigative
Panel then issued a formal Statement of Charges, on January 15, 1999, charging
Mr. Artimez as follows:
[1.] By initiating a sexual relationship with a client's wife, Respondent [Mr. Artimez] created an impermissible conflict between his own interests and those of his client, in violation of Rule 1.7(b) of the Rules of Professional Conduct, which provides:
Rule 1.7. Conflict of Interest: General rules.
(b) A lawyer shall not represent a client if the representation of that client may be materially be [sic] limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably [believes] the representation will not be adversely affected; and
(2) the client consents after consultation. . . .
See, e.g., People v. Bauder, 941 P.2d 282 (Colo. 1997) [(en banc) (per curiam)] (attorney propositioned client's wife and client's girlfriend).
[2.] By paying his client, in part, not to take any action which would result in a disciplinary complaint against Respondent, Respondent violated Rule 8.4(d) of the Rules of Professional Conduct, which provides:
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice.
This conduct is comparable to the conduct prohibited by Legal Ethics Inquiry 88-03, Settlement Agreements Requiring Complainants to Withdraw Ethics Complaint.
[3.] By lying to his partner about the relationship with the wife of the firm's client, Respondent frustrated his partner's efforts to comply with Rule 5.1(a) of the Rules of Professional Conduct, which provides:
Rule 5.1. Responsibilities of a partner or supervisory lawyer.
(a) A partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
Under the circumstances, Respondent violated Rule 8.4(c) of the Rules of Professional Conduct, which provides:
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Following Mr. Artimez's response to the statement of charges, the parties, on July 6, 1999, jointly submitted agreed findings of fact and conclusions of law. In their stipulation, Mr. Artimez and the Office of Disciplinary Counsel recounted that Mr. Artimez had cooperated fully with the investigation of the charges, that he had met with the Chief Disciplinary Counsel, and that he had voluntarily provided a detailed statement of the events giving rise to such charges. Mr. Artimez also admitted that his sexual relationship with Mrs. Crook constituted a conflict of interest between his interests and those of his client, Mr. Crook, in violation of Rule 1.7(b) of the West Virginia Rules of Professional Conduct. Ultimately, the parties concluded that Respondent's [Mr. Artimez's] written agreement to pay money to complainant [Mr. Crook], which agreement contained complainant's promise not to take any action which might lead to a disciplinary action, violated Rule 8.4(d) of the Rules of Professional Conduct[.] Additionally,
[t]he parties have agreed to omit a conclusion of law that Respondent violated Rule 1.7(b) of the Rules of Professional Conduct by having a relationship with Mr. Crook's wife because this issue was one of first impression with the Investigative Panel. Since Dana Crook was not Respondent's client, the clear prohibition of Rule 8.4(g) of the Rules of Professional Conduct did not apply. Mr. Artimez believed in good faith at the time that if the quality of his representation of Mr. Crook was unaffected, he was not in violation of Rule 1.7(b).
The parties ultimately recommended that Mr. Artimez be disciplined as follows:
Respondent should receive a public reprimand, together with the payment of any costs incurred in the investigation and hearing of this matter.
The parties considered the following to be evidence of mitigating factors supporting the recommendation of a public reprimand:
(a) Respondent has had no prior discipline; and
(b) Respondent accepts responsibility for his conduct and has been fully cooperative during the investigation of this matter.
Thereafter, on February 24, 2000, the Lawyer Disciplinary Board's Hearing Panel Subcommittee reviewed and adopted the parties' stipulation as its recommended decision to this Court.
Related to this Court's de novo review of recommended
decisions is its coordinate responsibility for determining the ultimate resolution
of lawyer disciplinary proceedings. In other words, [t]his Court is the
final arbiter of legal ethics problems and must make the ultimate decisions
about public reprimands, suspensions or annulments of attorneys' licenses to
practice law. Syl. pt. 3, Committee on Legal Ethics of The West Virginia
State Bar v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984). Also inherent
in determining each proceeding's final outcome is the Court's duty to mete out
appropriate discipline for the subject transgression(s).
In deciding on the appropriate disciplinary action for ethical violations, this Court must consider not only what steps would appropriately punish the respondent attorney, but also whether the discipline imposed is adequate to serve as an effective deterrent to other members of the Bar and at the same time restore public confidence in the ethical standards of the legal profession.
Syl. pt. 3, Committee on Legal Ethics of The West Virginia State Bar v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987). To ascertain the precise nature of the punishment warranted in a particular case, the Court is guided by a list of considerations supplied by the rules governing lawyer discipline.
In imposing a sanction after a finding of lawyer misconduct, unless otherwise provided in these rules, the Court or Board shall consider the following factors: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer's misconduct; and (4) the existence of any aggravating or mitigating factors.
W. Va. Rules of Lawyer Disciplinary Procedure Rule 3.16.
Being mindful of these standards, we now proceed to consider the Panel's recommended decision and the parties' contentions.
The disciplinary rules regulating the practice of
law in this State have been implemented to ensure that clients are represented
by competent attorneys who practice their profession with fairness, honesty,
and integrity. Integrity and honor are critical components of a lawyer's
character as are a sense of duty and fairness. In re Brown, 166
W. Va. at 232, 273 S.E.2d at 570. Accord Committee on Legal Ethics
of The West Virginia State Bar v. Ikner, 190 W. Va. 433, 437, 438 S.E.2d
613, 617 (1993) (Critical traits of a lawyer's character are honor and
integrity.). See also W. Va. Rules of Professional Conduct,
Preamble (A lawyer is a representative of clients, an officer of the legal
system and a public citizen having special responsibility for the quality of
justice.); W. Va. Standards of Professional Conduct, Preamble (Lawyers'
conduct should be characterized at all times by personal courtesy and professional
integrity. In fulfilling their duty as lawyers to represent a client vigorously,
they should be mindful of their obligations to the administration of justice.
Lawyers owe to opposing counsel, the parties, the courts and the court's staff
a duty of courtesy, candor, honesty, diligence, fairness and cooperation.).
To guarantee the quality of legal services supplied to clients, [a] lawyer's
conduct is governed by the West Virginia Rules of Professional Conduct and by
the rules of the courts before which the lawyer practices. A lawyer's conduct
is governed by the highest standards of courtesy, integrity, human decency and
respect for the judicial system the lawyer serves. . . .
W. Va. Standards of Professional Conduct Standard I.D.2. See also
In re Youmans, 118 N.J. 622, 633, 573 A.2d 899, 907 (1990) (per curiam)
(cautioning, in context of attorney's business dealings with a client, that
an attorney's conduct must measure up to the high standards required of
a member of the bar even if [his/her] duties in a particular transaction do
not involve the practice of law (internal quotations and citation omitted)).
When, however, a lawyer breeches his/her ethical obligations
by running afoul of the disciplinary rules' objectives, disciplinary proceedings
may be instituted. See, e.g., W. Va. Rules of Professional Conduct,
Scope (Failure to comply with an obligation or prohibition imposed by
a Rule is a basis for invoking the disciplinary process.); W. Va.
Rules of Lawyer Disciplinary Procedure Rule 3.14(1) (It shall be a ground
for discipline for a lawyer to . . . violate or attempt to violate
the Rules of Professional Conduct or any other rules of this jurisdiction regarding
professional conduct of lawyers[.]). The principle purpose of attorney
disciplinary proceedings is to safeguard the public's interest in the administration
of justice. Syl. pt. 3, Daily Gazette Co., Inc. v. Committee on Legal
Ethics of The West Virginia State Bar, 174 W. Va. 359, 326 S.E.2d 705
(1984). Accord Committee on Legal Ethics of The West Virginia State
Bar v. Mullins, 159 W. Va. 647, 651, 226 S.E.2d 427, 429 (1976), overruled
on other grounds by Committee on Legal Ethics of The West Virginia State
Bar v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993) ([T]he
primary purpose of the ethics committee is not punishment but rather the protection
of the public and the reassurance of the public as to the reliability and integrity
of attorneys[.]). Without the adoption of rules to govern the conduct
of attorneys and the enforcement of these canons through disciplinary proceedings,
the public, generally, and individual clients, specifically, would be ill-protected
from the occasional unscrupulous lawyer who attempts to circumvent such standards.
Because the contract which Mr. Artimez drafted and entered into with his former
client enabled him to avoid the ethical obligations to which he is bound to
adhere and permitted Mr. Crook to renounce the very rules that were implemented
for his own benefit, we cannot condone Mr. Artimez's behavior.
Having found that Mr. Artimez's conduct prejudiced the administration of justice in violation of W. Va. Rules of Professional Conduct Rule 8.4(d), we must next determine what form of discipline is appropriate under these circumstances. Rule 3.15 of the West Virginia Rules of Lawyer Disciplinary Procedure enumerates the sanctions that may be imposed upon a finding that a disciplinary rule has been violated:
(1) probation; (2) restitution; (3) limitation on the nature or extent of future practice; (4) supervised practice; (5) community service; (6) admonishment; (7) reprimand; (8) suspension; or (9) annulment. When a sanction is imposed, the Hearing Panel Subcommittee or the Court shall order the lawyer to reimburse the Lawyer Disciplinary Board for the costs of the disciplinary proceeding unless the Panel or the Court finds the reimbursement will pose an undue hardship on the lawyer. Willful failure to reimburse the Board may be punished as contempt of the Court.
When selecting among these alternatives, this Court casts the deciding vote as to the punishment befitting the infraction. See Syl. pt. 3, Blair, 174 W. Va. 494, 327 S.E.2d 671. However, we also afford the Panel's recommendations substantial consideration barring no blatant mistake of law or fact or other evidence of an arbitrary assessment of the case. See Syl. pt. 3, in part, In re Brown, 166 W. Va. 226, 273 S.E.2d 567.
Despite our regard for the Panel's recommendations,
we nevertheless must consider the particular facts of each lawyer disciplinary
proceeding and assess the appropriate sanction on a case-by-case basis.
In disciplinary proceedings, this
Court, rather than endeavoring to establish a uniform system of disciplinary action,
will consider the facts and circumstances in each case, including mitigating facts
and circumstances, in determining what disciplinary action, if any, is appropriate,
and when the committee on legal ethics initiates proceedings before this Court,
it has a duty to advise this Court of all pertinent facts with reference to the
charges and the recommended disciplinary action.
Syl. pt. 2, Mullins, 159 W. Va. 647, 226 S.E.2d 427. Accord Lawyer Disciplinary Bd. v. Cunningham, 195 W. Va. 27, 36, 464 S.E.2d 181, 190 (1995) (We endeavor to make an individualized assessment of the sanction rather than follow a punishment schedule.). For example, [p]rior discipline is an aggravating factor in a pending disciplinary proceeding because it calls into question the fitness of the attorney to continue to practice a profession imbued with a public trust. Syl. pt. 5, Committee on Legal Ethics of The West Virginia State Bar v. Tatterson, 177 W. Va. 356, 352 S.E.2d 107 (1986). Contrariwise, [a]lthough the prior good record of [a] respondent [attorney] does not excuse the misconduct with which he is charged . . ., it may be considered in mitigation with regard to the disposition of the case. Committee on Legal Ethics of The West Virginia State Bar v. Pence, 216 S.E.2d 236, 242 (W. Va. 1975). We turn now to the case at hand.
During the proceedings below, the parties recommended
that Mr. Artimez be publicly reprimanded and charged with the costs of this
disciplinary matter. The Panel thereafter adopted this recommendation and requests
this Court to impose the same method of punishment herein. We agree that a public
reprimand and an assessment of costs is suitable punishment under the present
circumstances. While Mr. Artimez acted intentionally in drafting and entering
into this contract and effectively usurped his former client's right to pursue
ethics charges against him, we also find that numerous factors mitigate the
degree of sanctions warranted in this case. See W. Va. Rules of
Lawyer Disciplinary Procedure Rule 3.16. First, the conduct upon which this
contract was based did not constitute a clear violation of an existing disciplinary
rule. As we will explain more fully in Section III.B., infra, there is
presently no rule which directly prohibits an attorney from engaging in a sexual
relationship with his/her client's spouse. Accordingly, while the contract absolving
Mr. Artimez of professional responsibility for his actions was improper, we
cannot say that the relationship, in and of itself, was in violation of the
existing disciplinary rules. Next, the record demonstrates that Mr. Artimez
has fully cooperated with the Board's investigation of the charges against him,
voluntarily provided testimony, and repeatedly demonstrated remorse for his
Moreover, Mr. Artimez, who has been practicing law for nearly twenty years,See footnote 15 has not had any prior instances of professional misconduct. Additionally, while the emotional damage to Mr. Crook undoubtedly has been great, it appears that the financial loss which he has suffered as a result of Mr. Artimez's actions is fairly minimal. Not only did Mr. Gellner successfully settle Mr. Crook's personal injury action, but Mr. Crook also received, as a result of the inappropriate contract at issue herein, a substantial sum of money from Mr. ArtimezSee footnote 16 and a waiver of the attorney's fees associated with his separate personal injury action. We note finally that the method of discipline imposed in this proceeding is consistent with the sanctions we have imposed in other cases involving conduct found to be prejudicial to the administration of justice in violation of W. Va. Rules of Professional Conduct Rule 8.4(d). See, e.g., Lawyer Disciplinary Bd. v. Veneri, 206 W. Va. 384, 524 S.E.2d 900 (1999) (per curiam) (imposing sanctions of admonishment and payment of disciplinary proceeding's costs); Lawyer Disciplinary Bd. v. Kupec, 204 W. Va. 643, 515 S.E.2d 600 (1999) (per curiam) (ordering discipline of admonishment, with conditions, and reimbursement of disciplinary proceeding's costs). See also Committee on Legal Ethics of The West Virginia State Bar v. Hazlett, 179 W. Va. 303, 367 S.E.2d 772 (1988) (sanctioning attorney with public reprimand and costs of disciplinary proceeding for improperly settling claims of professional misconduct with clients under then-applicable West Virginia Code of Professional Responsibility).
As the parties have duly noted, this matter is indeed
one of first impression for this Court. The sole rule governing an attorney's
sexual relationships, Rule 8.4(g), pertains only to affairs between an attorney
and his/her client.See footnote 19
Since no lawyer-client relationship ever existed between Mr. Artimez and Mrs.
Crook, this rule clearly does not apply in this instance.See
footnote 20 Before Rule 8.4(g) was adopted by this Court, we had occasion
to consider the precise issue addressed therein, i.e., the propriety
of a sexual relationship between an attorney and his/her client. Musick v.
Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994). At that time, we were
somewhat reluctant to adopt a bright-line standard to prohibit such conduct
until the matter had been addressed by our professional disciplinary rules.
It is a better practice for attorneys not to engage in sexual relations with any client in any type of case. Since no existing provision of the West Virginia Rules of Professional Conduct specifically prohibits a lawyer/client sexual relationship, we find that a lawyer's conduct of engaging in sexual relations with a client is not, in and of itself, a breach of professional responsibility at this time. However, other rules of professional conduct may be violated by a lawyer's sexual relationship with his client.
Syl. pt. 1, id. (emphasis added). But cf. Ikner, 190 W. Va. at 436, 438 S.E.2d at 616 (deciding that, even though there is no specific rule or case which has addressed th[e] issue [of whether an attorney's license may be suspended when he/she has disappeared during a pending disciplinary proceeding], we will address the issue under our inherent power to regulate the practice of law (citations omitted)). Also contributing to our hesitancy to finally rule on the propriety of such conduct was our appreciation of the ever- changing nature of human relationships. Even with the adoption of a clear standard of professional conduct, it is quite difficult to regulate the behavior of individual adults. Grappling with this dilemma in Musick, we observed that it is tempting to adopt an ethical standard which would prohibit such relationships with clients. However, due to the complexity of human relationships and the myriad unique factual situations which may arise, it is a difficult proposition to write a rule which is fair and equitable under all circumstances. 192 W. Va. at 530 n.2, 453 S.E.2d at 364 n.2. While the precise intricacies of a relationship between a lawyer and his/her client are not involved when the trysting parties are the lawyer and his/her client's spouse, there nevertheless are certain factors which cast doubt upon the propriety of such an arrangement.
From the client's perspective, a lawyer owes a duty
of loyalty to his/her client. Loyalty is an essential element in the lawyer's
relationship to a client. W. Va. Rules of Professional Conduct Rule
1.7 cmt. Loyalty to a Client. In addition, as we noted in the preceding
section of this opinion, a lawyer is expected to deal with his/her clients fairly,
honestly, and with integrity. See, e.g., W. Va. Standards of Professional
Conduct, Preamble; In re Brown, 166 W. Va. at 232, 273 S.E.2d at
570. Implicit in such dealings is the sense that, because of a lawyer's various
professional responsibilities, there exists a relationship of trust between
an attorney and his/her client. See, e.g., Kopelman & Assocs.,
L.C. v. Collins, 196 W. Va. 489, 496 n.7, 473 S.E.2d 910, 917 n.7 (1996)
(recognizing special trust and confidence that must exist between attorney
and client (citations omitted)). See also Lawyer Disciplinary
Bd. v. Friend, 200 W. Va. 368, 373, 489 S.E.2d 750, 755 (1997) (per
curiam) (An attorney occupies a position of trust with regard to his or
her client.); Committee on Legal Ethics of The West Virginia State
Bar v. White, 176 W. Va. 753, 756, 349 S.E.2d 919, 922 (1986) (per
curiam) (observing that, in a relationship between a client and his/her attorney,
[t]he client comes to the attorney trusting in his expertise and honesty).
In essence, an attorney is a repository of the client's confidences, and the
trust a client places in his/her lawyer is so highly esteemed, and deemed so
integral to a successful attorney-client relationship, that it has been afforded
a status of privilege. See, e.g., W. Va. R. Evid. 501 (recognizing
common law privileges); State v. Fisher, 126 W. Va. 117, 121, 27
S.E.2d 581, 583 (1943) (It is settled law in this State that a communication
to an attorney by a client or former client dealing with relation as attorney
and client is privileged. (citations omitted)). See generally W. Va.
Rules of Professional Conduct Rule 1.6 and cmt. (discussing lawyer's responsibility
to maintain confidentiality of communications with client). When, however, a
lawyer commences a sexual relationship with his/her client's spouse, it is not
hard to imagine that the attorney-client relationship that has been built upon
trust and an expectation of loyalty will come to an abrupt end, much like a
gust of wind demolishes a stable, but nevertheless vulnerable, house of cards.
On the other hand, a lawyer may represent a client
even though there appears to a be a conflict between the interests of the client
and the lawyer him/herself if the lawyer reasonably believes that his/her representation
will not be affected thereby and if the client, who has been informed of the
conflict, agrees to continued representation. W. Va. Rules of Professional
Conduct Rule 1.7(b). However, this method of client protection is not entirely
foolproof as the attorney who is involved in a sexual relationship with his/her
client's spouse is the same person who is charged with recognizing an irreconcilable
conflict situation. See W. Va. Rules of Professional Conduct Rule
1.7 cmt. Conflict Charged by an Opposing Party (Resolving questions
of conflict of interest is primarily the responsibility of the lawyer undertaking
the representation.). But see Syl. pt. 1, Garlow v. Zakaib,
186 W. Va. 457, 413 S.E.2d 112 (1991) (A circuit court, upon motion
of a party, by its inherent power to do what is reasonably necessary for the
administration of justice, may disqualify a lawyer from a case because the lawyer's
representation in the case presents a conflict of interest where the conflict
is such as clearly to call in question the fair or efficient administration
of justice. Such motion should be viewed with extreme caution because of the
interference with the lawyer-client relationship.). Thus, it is not difficult
to conceive of a situation wherein the directives of Rule 1.7(b) are simply
unworkable. For example, consider the scenario of an attorney who is having
an affair with his/her client's spouse and determines that his/her personal
interests in the relationship conflict with those of his/her client. The attorney
then decides to follow the directives of Rule 1.7(b) and determines that he/she
can nevertheless continue to represent his/her client with no adverse effects.
However, in order to obtain his/her client's consent to the continued representation,
the attorney must further jeopardize the previously established relationship,
founded on trust and loyalty, which he/she enjoys with his/her client and admit
to having an adulterous relationship with his/her client's spouse. Given this
scenario, it seems rare, indeed, that most members of the bar would be able
to objectively reconcile their professional duties with their moral obligations.
In light of these various concerns attending sexual
relationships between a lawyer and his/her client's spouse, we are reluctant
to devise a hard and fast ethical rule without the benefit of a formal disciplinary
standard to govern such conduct. Therefore, we hold that lawyers should not
engage in sexual relations with their clients' spouses in any type of case.
Since no existing provision of the West Virginia Rules of Professional Conduct
specifically prohibits a sexual relationship between a lawyer and his/her client's
spouse, we find, at this time, that a lawyer's conduct in this regard is not,
in and of itself, a breach of professional responsibility. Nevertheless, a lawyer's
sexual relationship with his/her client's spouse may violate other rules of
professional conduct.See footnote 21
Turning now to the case presently before us, we observe
that the parties correctly ascertained that Mr. Artimez's sexual relationship
with Mrs. Crook was not prohibited by any of the current rules of professional
conduct. That is not to say, however, that Mr. Artimez's conduct was entirely
ethical. As we noted above, the absence of a disciplinary rule which plainly
governs a certain instance of conduct does not automatically render the suspect
behavior permissible. In this instance, we agree with the Board that Mr. Artimez's
actions implicated the provisions of Rule 1.7(b). The relevant portion of this
rule directs that
[a] lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be adversely affected; and
(2) the client consents after consultation. . . .
W. Va. Rules of Professional Conduct Rule 1.7(b) (emphasis added). For his part, Mr. Artimez has stated that he did not believe his relationship with Mrs. Crook would jeopardize his continued representation of Mr. Crook as Mrs. Crook had no interest in Mr. Crook's personal injury action.See footnote 22 Nonetheless, at some point during his pursuit of Mr. Crook's claims, Mr. Artimez admitted to having felt some discomfort at continuing to represent him as a client while he was having an affair with his wife, and ultimately transferred Mr. Crook's file to his law partner, Mr. Gellner, for the final resolution of his case.See footnote 23 While we certainly cannot condone Mr. Artimez's affair, we nonetheless appreciate his recognition of his irreconcilable conflicting personal interests and his voluntary withdrawal from Mr. Crook's case. Given the novelty of this charge and the fact that lawyers are generally entrusted with resolving the conflicts of interest which they inevitably encounter, we do not find further discipline to be warranted, and, accordingly, adopt the Panel's recommendation in this regard.
However, we would be remiss if we did not also acknowledge
the irreparable damage that Mr. Artimez's behavior has had to his relationship
with his former client, Mr. Crook, and to the reputation of the legal profession
as a whole. We remind counsel that, even as private citizens, lawyers are guided
not only by the Rules of Professional Conduct, but also by personal conscience
and the approbation of professional peers. W. Va. Rules of Professional
Conduct, Preamble. Thus, when facing similarly difficult issues of professional
discretion, we caution members of the bar to exercise [their] sensitive
professional and moral judgment guided by the basic principles underlying the
Rules [of Professional Conduct]. Id.
Crook covenants and represents that he shall take no action of any sort which is intended, or can be reasonably anticipated to result in any disciplinary action against Artimez or Gregory A. Gellner by the West Virginia State Bar Association, the West Virginia Supreme Court of Appeals, or any similar or related organization.
[i]t is professional misconduct
for a lawyer to:
. . . .
(g) have sexual relations with a client whom the lawyer personally represents during the legal representation unless a consensual sexual relationship existed between them at the commencement of the lawyer/client relationship. For purposes of this rule, sexual relations means sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire of either party or as a means of abuse.