*1 S.E.2d 579 ETHICS, COMMITTEE LEGAL ON
Complainant, Michael FRAME J.
Clark
Benninger, Respondents.
No. 21627. Appeals
Supreme Court Virginia.
of West
Submitted June 1993. July
Decided 1993. Goodman, Charleston,
Sherri D. for com- plainant. B. Benning-
Clark Frame and Michael J. er, pro se.
PER CURIAM: hearing panel of the Committee on Legal (“the Committee”) Ethics has found attorney Clark violated Frame of the West Rules of Profes- through following Conduct ac- sional (1) failing impor- tions: understand tance of client existed; (2) conflict of interest failing to discuss the issue of the conflict either client once all facts were known; away trying rationalize conflict of interest its acknowl- when edgement unquestionably inconvenient *2 642 telephone by representative The with an Erie to its client. the firm and law allegedly Erie reprimand and was advised that would public recommends
Committee
offer to settle the case for Mr. Baamonde’s
he be assessed
against Mr. Frame and that
Subsequent
hospital and medical bills.
proceeding.
the costs of
conversation,
that
Ms. McMillenhad no fur-
although at-
that
found
Committee
Clawg-
Mr.
ther contact with either Erie or
Benninger
torney J. Michael
and
es
assumed that the lawsuit had been
he
stages,
final
should
in its
the conflict
resolved.
genuine at-
disciplined
to his
due
not be
1989,
early
In
Ms. McMillen contacted
partners of the
tempts
his senior
to alert
regarding representation
in a
Having reviewed the record
conflict.
During
divorce action.
their initial consul-
matter,
adopt the recommendations
1989,
7,
tation on March
Ms. McMillen dis-
public repri-
and order
of
Committee
cussed her interest in Markwoods
her
and
Frame,
as-
of Mr.
costs of $840.20
mand
her
any
concern that
husband not receive
Frame,
no further
against Mr.
and
sessed
company through
portion of
the di-
Benninger.
against Mr.
action
Althоugh
unclear,
is
vorce.
evidence
apparently
there was
was some reference
I.
during
meeting to the
Baamonde suit.
10, 1988, Wesley Metheney, a
August
On
testified
Mr.
Frame
Wilson,
firm of
Frame
member of
law
suing
her if his firm was
asked
Virgi-
Metheney Morgantown,
&
tion. Ms. McMillen also testified
she
Baamonde,
nia,
civil action entitled
filed a
impression
had been under the
Inc.,
Markwoods,
dba J & J Home
et al.
matter had been settled and that she did
“Markwoods”).
(hereinafter
Mr.
Sales
significance
not understand the
of the dis-
alleged
injured his
Baamonde
that he had
cussion.
walking up steps
inspect
knee while
Mr. Mr.
mobile home on J & J Home Sales’ lot.
Frame assumed
of
$500,000
sought
damages
complaint
and Ms. McMillen and filed a divorce
Baamonde
$100,000
1989,
damages
April May
for
her behalf.
In
Mr.
loss
consortium
оn
and
complaint
his wife.
summons and
Frame’s
Ms. McMillen’s
Secretary
meeting
and
served on the
State
divorce case included
with her on
were
25,
April
11
Lynn
April
receiving
to Ms. Vickie
forwarded
financial
information,
president
manager
family-
hearing
and scheduling
vice
a final
8,
Meanwhile,
company,
home
Markwoods.
for June
owned mobile
1989.
the Baa-
on
pretrial
Ms. McMillen receivеd these documents
monde action was scheduled for
1988,
16,
15, 1989,
August
provided
May
them to her
conference on
and Mr.
Mr.
agent
day.
that same
Ms. Frame and
were
local insurance
identified
plaintiffs
J
trial
employed
pre-
McMillen had been
J &
as
counsel for the
1978,
26,
having
completed by
trial memorandum
April
Homes Sales since
become
fifty-
holding
stockholder
1989.
percent
outstаnding
two
shares.
1, 1989,
On June
Ms. McMillen met with
insurer,
Insurance,
Erie
re- Mr. Frame and
Mr.
Markwoods’
learned that
Frame had
Jr.,
Clawges,
trial
tained Russell
to defend
a criminal
which conflicted with the
1989,
8,
Ms.
Clawges
hearing.
Mr.
contacted
McMil- scheduled June
divorce
action.
August
Benninger
rep-
her Mr.
len on
and informed
Michael
then assumed
Clawges pre-
representation.
his
Mr.
resentation of Ms.
as substitute
complaint
preparation
hearing,
for-
pared an answer to
counsel.
for the
copy
Benninger
on
of it to Ms. McMillen
Mr.
met with
McMillen and
warded
Ms.
father,
September
Clawges spoke
Mr.
1988.
her
received additional financial
formation,
again
September
Ms.
with her
on
1988.
and consulted with
McMil-
Benninger
McMillen then had no further communica-
len’s accountant. Mr.
also at-
8,1992,
Clawges
September
hearing
as
the final
tion with
tended
June
through
speak
May
1989. She did
Ms. McMillen’s counsel.
se,
summary Benninger, pro
as
Upon receipt of a motion
well Ms. McMillen
Markwoods,
Clawges,
judgment on behalf of
and Mr.
the subcommittee recom-
*3
Benninger
requested
Mr.
Metheney
that
mended sanctions
respondent Mr.
in the mo-
legal
raised
research the
issues
public reprimand.
Frame in the form of a
Ms.
Benninger noticed
tion. When Mr.
Although
Benninger
party
Mr.
was a
affidavit,
included within
McMillen’s
stages,
conflict
its final
the Committee
summary judgment, he realized
motion for
subject
recommended that he be
to no fur-
representing
firm
Ms. McMil-
that his
discipline.
ther
her
suing
len in her divorce while
separate action. He also under-
tion in a
II.
going
appear
to
as an
stood that she was
1.7(a)
the West
Rules оf
the trial of thé Baa-
adverse witness at
provides
Professional Conduct
as follows:
Benninger
Mr.
researched
monde action.
“(a) A lawyer
represent
shall not
a client if
question and con-
potential
conflict
of that client will be
Frame.
ferred with Mr.
and Mr.
directly
adverse to another
unless:
They concluded that there was no conflict
(1)
lawyer reasonably
rep-
believes the
of interest because their firm had sued the
adversely
resentation will not
affect
corporate entity rather than Ms. McMillen
client;
with the other
they
personally. They also concluded that
each client consents after consultation.”
need not discuss the issue with either Ms.
Respondents
they
maintain that
had no
they per-
McMillenor the Baamondes since
duty
refrаin
to
or ob-
no conflict of interest.
ceived
adversity
tain consent because no direct
27, 1989, for reasons not now
On June
clients,
existed between the two
Ms. McMil-
to Ms.
she first realized
apparent
definition,
By
len and
Baamonde.
no
firm
her in the di-
that the
if
violation Rule
can occur
represented
plaintiff
vorce action also
directly
of one client
not
sentatiоn
will
corporation.
McMillen con-
suing her
Ms.
regard
adverse to another client. With
to
Clawges on or
June
tacted Mr.
about
interpretation
phrase “directly
of the
perceived
complained
of what she
adverse,”
1.7(a) pro-
the comment to Rule
day
a conflict of interest. On the
to be
following guidance:
vides the
trial,
July
Baamonde
the scheduled
Thus,
lawyer ordinаrily may
act as
not
Clawges
disquali-
to
orally
moved
person
advocate
Wilson,
firm of
Frame Methe-
fy the law
&
matter,
represents in some other
even if
alleged
ney
upon the
conflict of
based
wholly
it is
unrelated.
the other
On
motion,
The lower court denied the
terest.
hand,
representation in
simultaneous
un-
information had
ruling that no confidential
related matters of cliеnts whose interests
disclosed and that
the motion was
been
adverse,
only generally
are
such as com-
proceeded, and the
untimely. The trial
re-
peting
enterprises,
economic
does not
policy
Upon
limits.
case settled within
quire
respective
consent of the
clients.
McMil-
proceedings,
Ms.
conclusion
(a)
rep-
Paragraph
applies only when the
anger
her
and sense of be-
expressed
len
of one client
direct-
resentation
would be
Benninger
to
trayal
to Mr.
and travelled
to the other.
attorney Virginia Hop-
Kingwood to hire
counsel in the divorce
kins to substitute as
Re-
The Committee maintains that
action.
representation Mr. Baamonde
spondents’
personal injury
in his
lawsuit was
15, 1989,
McMillen
September
Ms.
On
capacity
in her
adverse to McMillen
complaint with the West
filed an ethics
shareholder,
hearing
A
was held
Virginia State Bar.
Respon-
manager of
29,1992,
Markwoods.
August
disciplinary matter
although
Ms. McMillen
Charleston,
dents contend
Bar
at
the State
Center
sides
opposing
Baamonde were on
and Mr.
member Re-
Virginia, subcommittee
action,
personal injury
upon
presiding. Based
evi-
beccа A. Betts
representing were not
by Mr. Frame and Mr. dents
submitted
dence
Co.,
MacQueen,
They simply ley
injury action.
&
Inc. v.
personal
in that
(1992).
case,
in a divorce ac-
represented Ms. McMillen
S.E.2d
representing Mr. Baamonde
tion while
recognized
being
named as a
personal injury action. Mr.
unrelated
prerequisite
creating
is not a
lawsuit
no informa-
acknowledges that
adversity
the dirеct
element
needed
es-
sought by the Re-
disclosed or
tion was
Morgan
tablish a conflict of interest.
case,
concerning the Baamonde
spondents
Stanley
attempt
disqualify
involved an
to identi-
and Ms. McMillenwas also unable
based,
part, upon
provisions
law firm
resulting
fy any prejudice or misfortune
1.7(a).
represented
of Rule
The firm
both
*4
misrepresentation.
from the simultaneоus
employees
the
and certain
in
State
state
.did, however, appear as a
the State’s action to recover investment
regarding
in the Baamonde case
witness
finding
In
fund losses.
that a conflict of
Markwoods and
general
the
business of
existed,
explained
interest
also
we
by
cross-examined
was
po-
critical issue is the existence or
“[t]he
Respondents’ law firm.
the
tentiality of conflicts of interest and not
question is whether
The conclusive
parties
the inclusion of all
in
adverse
a
directly
client
representation of one
was
lawsuit.”
Id. at
We also addressed
adverse”
It is the interests of
requirement
Morgan
impermissible.
ex rel.
tion is
State
Stan-
plained
attorney
the rule is con-
an
should “not be
clients with which
cerned,
result
permitted
put
not the
obtained.1
position
himself
where,
unconsciously,
even
he will be
case, representation of
present
In the
tempted
pedal’
to ‘soft
his zeal in further-
Mr. Baamonde entailed cross-examination
ing the interests of
one client
order to
contends
Ms. McMillen. The Committee
clash
automatically exists
avoid
obvious
with those of anoth-
аdversity
direct
lawyer’s representation
of one
when
er.” Id. at 99. The American Bar Associa-
entails cross-examination of an ad-
client
opinion
tion
further notes that cross-exami-
lawyer’s
is also the
verse witness who
lawyer’s
poten-
nation of a
own client could
92-367,
opinion
issued
client.2
formal
tially jeopardize
“First,
client confidences.
by the American Bar Assoсiation Commit-
lawyer’s general familiarity
to the extent a
Responsibili-
tee on Ethics and Professional
with how a client’s mind works is relevant
“A
ty,
explained:
the Committee
information, may
useful
it
also
be dis-
course of
a client
who
qualifying information within the contem-
examines another client as an adverse wit-
1.8(b)_”3
Second,
plation of Rule
lawyer’s
ness
a matter unrelated
*5
opinion еxplains
lawyer
that if the
had ac-
client,
representation of the other
... will quired confidential information relevant to
likely
disqualifying
is
face a conflict that
cross-examination,
lawyer may
ov-
appropriate
of
client consent.”
the absence
ercompensate and fail to cross-examine ful-
Lawyers’
Profes-
ABA/BNA
Manual on
ly
adequately represеnt
and fail to
the liti-
(1993).
1001: 149
sional Conduct §
gation client.
“lawyer’s ex-
concluded that a
Committee
amining
lawyer’s client as an adverse
We conclude that
the simulta
witness,
conducting third[-]party
or
discov-
representation
neous
of Mr. Baamonde and
ordinarily present a
ery of a
will
fortunately resulting
while
of interest....”
The Committee
conflict
harm,
dangers
presented
in no actual
suсh
discovery
or
opined that such examination
contemplated
as
above and constitutes a
following
likely
problems:
create the
is
to
1.7(a).
previous
violation of Rule
We have
(1)
pit
duty
loyalty
to each
to
following:
ly explained the
“The ...
against
duty
[Rules
to the
client
mini
of Professional
state the
other; (2)
breaching
duty of
to risk
Conduct]
client-witness;
no
confidentiality
аnd mum level of conduct below which
law
present
being subject
a tension between the law-
to disci
yer
can fall without
in continued
yer’s
pecuniary
own
interest
plinary
Syl. Pt.
on
action.”
Committee
employment by the client-witness and the
Tatterson,
Legal Ethics
“
ability
effectively represent
lawyer’s
(1984).
‘This
is the
she did not what from her perfect would have been a result in her NEELY, Justice, dissenting: divorce action. Meanwhile the escutcheon majority аccurately sets out highly-regarded lawyer of a in this state is standard needlessly besmirched. sentation of one client is adverse to intimacy
another: the duration and
lawyer’s relationship the clients in-
volved; performed by the functions conflict;
lawyer; the likelihood of actual prejudice. If Ms.
and the likelihood of
McMillen were a named in the Baa- action,
monde the case
would be unassailable. improper emphasize
4. We that neither this Court nor the We therefore attribute no motive to assigns any to Mr. Committee Frame in this matter. As the Committee ed unethical intent any Mr. Frame or member of his law firm. point- out, example poor judg- the incident is an deceptive ment rather than malicious or intent.