Kentucky Bar Ass'n v. Roberts

NOBLE, J.,

concurring in part and dissenting in part.

The Respondent, Nancy Roberts, was charged with nine counts of misconduct related to her representation of Alan David Manning in a murder prosecution and of the estate of Manning’s father. Among the allegations against her are that her fee agreement in Manning’s criminal case was a de facto contingent-fee agreement which created a conflict of interest, that she had conflicts of interest in representing multiple parties in the probate of the estate, and that she failed to promptly turn over Manning’s file to successor counsel. The majority concludes that the contingent-fee allegations are unfounded but agrees that she had a conflict of interest in the representation of the estate and that she improperly failed to turn over Manning’s file to successor counsel. Thus, the majority adopts the recommendation of the Board of Governors that Roberts be found guilty of only two ethical violations, but imposes a longer sanction (61 days instead of the recommended 30 days).

While I agree that the fee agreement was not, on its face, a contingent-fee agreement, it nonetheless operated very much like one and created the same conflicts of interest that a criminal-case contingent-fee agreement would. For that reason, I would find Roberts guilty of more than the two violations of the Rules of Professional Conduct recommended by the Board and would impose a longer suspension than that recommended by the Board or that imposed by the majority.

Before turning to the additional charges, I first must note that I agree with the majority that Roberts violated her ethical duties as to Manning’s client file and in representing the estate. But I disagree with how the majority characterizes some of Roberts’s conduct and fails to explain the full scope of her ethical -violations, which are actually worse than described.

The allegation about releasing the file is unquestionably true. SCR 3.130-1.16(d) stated12 (and still states) in relevant part: “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as ... surrendering papers and property to which the client is entitled .... The lawyer may retain papers relating to the client to the extent permitted by other law.”

*416Despite this rule, Roberts acted as though the file belonged to her, not to the client, and that successor counsel’s request for the file had been akin to a discovery request. Despite her claim that she was only obligated to turn over the client file to the extent reasonably practicable and even then only those parts of the file that the client is entitled to, Kentucky law is fairly clear that the file belongs to the client and must be turned over upon request at the end of the representation. Roberts claims that she understood the obligation to turn over “a copy of most of the file,” but that she did not know what to do about “attorney work product.” She also claimed that Manning’s new counsel, Ms. Jost, spoke with her on the phone only a single time and was unwilling to give her a reasonable time to prepare the file. She ignores that a written authorization for the file, signed by Manning, was faxed to her office on January 28, 2004, yet she still had not turned over the file when Ms. Jost filed her motion on February 19, three weeks later. Three weeks was ample time to resolve the work-product issue and get a copy of the file to Manning’s new counsel.

The majority notes that Roberts might have a point if her concern was with not turning over her own work product but that because she kept the entire file, she violated the rule. I disagree with the suggestion that Roberts was entitled to keep her work product.

While at least one Kentucky ethics opinion states that work product is excluded from what must be turned over to the client (while also stating that notes, memos, and research must be turned over), see KBA Ethics Op. E-895 (March 1997), it is unclear why such material should be excepted. Work product is produced for the client. In other words, work product is one of the things the client buys from the lawyer.

While there are many policy reasons to have a limited work-product privilege in the context of discovery to bar opposing attorneys from obtaining it, those reasons are not present when the person seeking the work product is the person who hired the attorney to create the work product. Since the attorney is the agent of the client, arguably the client owns the work product, to which the attorney is entitled to keep only a copy. The current version of the rule distinguishes between work product and uncompensated work product, “e.g., draft of pleadings, agreements and the like,” SCR 8.130-1.16 cmt.10, and allows the withholding of such items “unless the client’s interests will be substantially prejudiced without the uncompensated work product,” id. This distinction makes more sense than the rule suggested in the majority opinion.

Similarly, the charge about Roberts’s conflict of interest in jointly representing almost everyone involved in the probate case is also clearly supported by the evidence. SCR 3.130-1.7(b) stated 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.... ”

Again, it is clear that representing the estate,13 the executor of the estate, and *417two of the heirs (one of whom was accused and eventually found guilty of killing the testator) creates a conflict of interest. Usually, an attorney for the representative of an estate is not also the attorney for the beneficiaries. Such an attorney owes duties only to the representative and does not have a fiduciary obligation to the beneficiaries. KBA Ethics Op. E-401, at 3 (Sept.1997). Multiple or joint representation is allowed but only under certain circumstances.

A lawyer may represent the fiduciary of a decedent’s estate ... and the beneficiaries of an estate ... if the lawyer obtains the consent of the multiple clients, and explains the limitations on the lawyer’s actions in the event a conflict arises, and the consequences to the clients if a conflict occurs. Further, a lawyer may obtain the consent of multiple clients only after appropriate consultation with the multiple clients at the time of the representation.

Id. at 5. This requirement is based on SCR 3.130-1.7(b), which makes the conflict of interest rule inapplicable when the “lawyer reasonably believes the representation will not be adversely affected” and “the client consents after consultation.” The consultation required by the rule “shall include explanation of the implications of the common representation and the advantages and risks involved.” SCR 3.130-1.7(b).

First, Roberts could not have reasonably believed that the representation would not be adversely affected when one of the clients is on trial for killing the testator and a negative outcome in that case would bar that client from taking under the will. No amount of consent and consultation allows waiver of this limit. Roberts argues that Manning’s and his brothers’ interests were actually aligned because Manning would have been happy if his brother could inherit all of the assets. She notes that both claim to have been abused by their father and that their bond made their interests “perfectly synchronized.” But the conflict extended also to Russell Justice, who supported the brothers but eventually came to see a conflict in Roberts’s representing him and them.

Roberts’s claim of no actual conflict (because all the parties supported each other) may be true, but it still seems a bit much given the circumstances. To be perfectly honest, the arrangement just does not quite pass the smell test. A good example, noted by the KBA, is the payment of money for Manning’s expert witness. If Roberts represented the executor of the estate, she was required to advise him that the payments should not be made, as they were not an obligation or debt of the estate and they were to assist the accused killer of the testator. But she appears not to have done so.

Second, if joint representation is to be undertaken, all the parties must consent to the waiver and all the parties must be consulted at the beginning of the joint representation. It isn’t clear that the consent was ever proper, since the Manning brothers’ waivers were obtained well over a year after the joint representation appears to have commenced. Moreover, Justice never signed a waiver. And, when it *418comes to the consultation requirement, the testimony is at least conflicting, with Manning at one point saying that Roberts discussed the conflict, albeit without going into detail, and later saying that he didn’t know there was a conflict between himself, his brother, and the estate.

Thus, the evidence is sufficient to prove ethical violations on the two counts that the Board of Governors found. Even if Roberts’s take on what happened is the better account of the facts, she still technically violated the rules. Whether she did so knowingly or intentionally or simply negligently goes to the weight of the violation, which can help determine the appropriate sanction but not whether she violated the rules. The Board appears to have thought that Ms. Roberts was well-meaning but at least negligent and taken that into account in recommending a sanction of only 30 days. The majority is apparently less impressed by this and thus has ordered a 61-day suspension.

Where I part from the majority is its decision that Roberts did not violate any of the other ethical rules. While I do not think the evidence would justify finding Roberts guilty on all the charges,141 think the proof supports finding that Roberts violated her ethical duties with respect to her competency in representing Manning in his criminal case and the fee arrangement for that representation.

As explained by the majority, the Warren Circuit Court granted Manning’s RCr 11.42 motion and vacated his conviction. This alone suggests that Roberts’s representation fell below the level of competency required by SCR 3.130-1.1.15 Of course, the circuit court’s reason for finding Roberts’s representation to have been ineffective relates primarily to the conflict of interest allegedly created by the fee arrangement, but other proof supports a finding that her representation was less than competent under the circumstances. Witnesses testified that Roberts persuaded Manning not to take the five-year plea deal or that she was against any plea deal. Roberts herself admitted that she did not advise Manning to take the plea deal. Yet Manning was facing life in prison, which the jury ultimately gave him upon his conviction. And while Roberts claimed that she discussed the deal with Manning and implied that her lack of advice was based on his insistence that he was innocent, the trial commissioner, who heard the testimony firsthand, was nevertheless convinced by the witnesses who placed the blame for Manning not taking the deal squarely on *419Roberts. That is sufficient to show that Roberts violated SCR 3.180-1.1.

But the most troubling issue is the nature of the fee arrangement between Roberts and Manning, which implicates SCR 3.180—1.5(d)(2)16 directly and other rules indirectly.

The majority is simply incorrect that the purpose of these rules is to avoid the “taint of excess.” The purpose of these rules is to avoid the conflict of interest that inherently results from a contingency-fee agreement in a criminal case. Such an agreement pits the lawyer’s interest in getting an acquittal (to get paid) against the interests of the client, which might be best served by entering into a plea bargain.

Nonetheless, the arrangement, as laid out in the several employment agreements, was never expressly contingent on a result. Thus, to that extent, the majority is correct that it was not literally a contingent-fee agreement.

But the clear effect of the agreement, in light of the facts of Manning’s position, was that it could be consummated only if Roberts won Manning’s freedom. While her position is that she took the case with a charitable intent and anticipated that she would never be paid, the simple fact is that she still entered into an employment agreement that contemplated payment for her services. Worse still, the agreement contemplated payment after the fact from assets that had not and would not fully materialize until and unless Manning was acquitted because of the slayer statute. The agreements specifically refer to these assets, including those under the control of the named representative of the estate and the “timber” that existed on one of the properties that Manning stood to inherit. The payment was also secured by a promissory note, which in turn was supposed to be secured by a mortgage. Though it is not clear what the mortgage was to be for, there is little doubt that it would be for the property that Manning would inherit. At best, Manning had an expectancy that turned on a condition precedent, namely, Roberts’s winning an acquittal.-

The majority dismisses the promissory note because no mortgage was ever executed, but that does not change the fact that Roberts still had Manning execute the promissory note. This goes far beyond a standard lawyer engagement agreement.

And Roberts’s own efforts to collect on the fee, or at least intimations about that fee, such as when she noted repeatedly to various people that she was owed about $100,000 for the representation, belies her claimed charitable motivation at least a little. As her own brief admits, the case was an “almost certainly free” one. (Emphasis added.)

The majority states that Roberts’s failure to advise Manning about whether he should go to trial “is mystifying” and “perplexing.” But the lack of advice is easily accounted for by Roberts’s incentive under the fee agreements to seek only an acquittal for Manning and thereby make him eligible to take under his father’s will. It’s neither mystifying nor perplexing; rather, it’s patently obvious why she failed to give him such advice.

In this light, the fee arrangement sounds suspiciously like a contingent fee in a criminal ease. And the rule is not limited to actually collecting a contingent fee, which for obvious reasons did not occur here; it also prohibits a lawyer from entering into a contingent-fee arrangement in a criminal case. The policy behind this rule is very well illustrated in this case, at least *420if the circuit court’s take on the facts in its RCr 11.42 order is correct. If Roberts entered into a contingent-fee agreement, then her only chance of getting paid was for Manning not to get any sort of conviction, including those resulting from a favorable plea bargain like that offered at the beginning in his case. This gave her an incentive to avoid a plea bargain and take the case to trial, where even a very small chance of winning (and thus getting paid) was better than the zero chance that came with a plea bargain.

The majority agrees with the argument by Roberts’s counsel that the agreement did little more than any other attorney’s agreement where payment is not made up front: it created a debt, calculated by the hourly rate in the agreement by the number of hours worked. Admittedly, that the likelihood of collecting on that debt was very low unless Roberts won the trial does not change the fact that the agreement created a debt. But this only shows that the agreement was not for a contingent fee on its face. That does not necessarily get Roberts off the hook, because we have to look at the effect of the agreement in light of the facts of the case.

The problem with the fee agreements is not that they included no up-front payment, though as every criminal defense attorney knows, you get paid up front. Rather, the problem with the agreements is that they specifically referenced getting paid from the proceeds of Manning’s inheritance. I agree with the majority that had Roberts simply entered into the usual representation agreement, perhaps one providing she would be paid by the hour, then no conflict would have arisen, even if the chances of getting paid were near zero without an acquittal. But Roberts went far beyond such an agreement and specifically linked her fee to Manning’s inheritance.

Even if the representation agreement did not violate the letter of the contingent-fee rule, it still gave Roberts the same incentives to pressure Manning to take his chances at trial rather than taking the plea bargain. That the promissory note (referencing a mortgage) was executed by Manning is strong evidence of this conflict. At the very least, then, Roberts had a conflict of interest created by her own financial interest in Manning’s case, which would violate SCR 3.130-1.7(b),17 unless she consulted with Manning about the conflict. Yet there is little evidence to suggest that she did engage in such consultation.

Roberts argues that the promissory note is invalid on its face because several terms were left out (e.g., the amount of payments to be made). This, she claims, made the agreement illusory and was meant only to “bluff or encourage David [Manning] into paying” her. She also notes that no “fake mortgage” was ever drafted or executed because the note by itself was enough and because Manning owned nothing to mortgage. As to the agreement about the timber, she argues that the language in it was insufficient to satisfy the statute of frauds and claims that there was no marketable timber on the realty in the estate. This too, she argues, made that part of the agreement a “bluff.”

If this was her intent, then her behavior was still unethical, though the charges may have described it incorrectly. Such bullying of a client is beyond the pale. Moreover, it further disproves her claim that she never expected to be paid and instead *421undertook the representation out of the kindness of her own heart and love and respect for Manning’s mother. Indeed, that she took the case as charity is belied by the fact that she executed multiple agreements under which Manning obligated himself to pay her. If the case was pro bono from the start (or at any point), the representation agreements would have said so.

The simple fact is that Roberts undertook the representation with the expectation that she would get paid, or that she at least would try to get paid, and she knew that could happen only if she won the case and thereby allowed Manning to avoid the effect of the slayer statute, KRS 381.280. This is reflected in the various fee agreements she entered into with Manning, several of which expressly refer to money and real estate that Manning stood to inherit. While this was not an express contingent-fee agreement, it was a de facto contingent-fee agreement. And even if a de facto contingent-fee agreement was insufficient to violate the rules barring such agreements, Roberts’s behavior in light of the circumstances of this case created the same conflicts of interest between Roberts and her client that an express contingent-fee agreement would. Despite her claims otherwise, she did not take this case as pure charity, and she knew she could get paid only if Manning were acquitted. This created a substantial, conflict of interest, especially given that the Commonwealth had offered a plea bargain by which Manning would only get five years in prison. By structuring the fee agreements as she did, Roberts removed any incentive to advise Manning to take such a favorable plea bargain. That violates the rules on conflicts of interest.

Perhaps this is all mitigated by the fact that the chances of Roberts’s winning her case were so small. With the small chances of success, it is unlikely that the fee arrangement was part of some overarching master-plan pitting Roberts’s financial interests against the liberty of her client. Unless she is the worst gambler in the world, it seems there must be some truth to her claims that she was motivated by compassion for Manning. Still, mitigation only goes so far, and a violation of the rules is exactly that and deserving of a sanction. At best, Roberts’s good motives suggest that she should not be sanctioned as harshly as someone who intentionally takes advantage of a client.

At the very least, I would find that Roberts had additional conflicts of interest beyond those found by the majority. I would also End that Roberts’s representation of Manning, specifically her failure to properly advise him about the proposed plea bargain, fell below the level of competence required of lawyers in the Commonwealth. Those additional violations call for a harsher sanction than that recommended by the Board of Governors and that ultimately adopted by the majority. That Roberts did not commit some of the violations found by the trial commissioner, however, suggests a shorter suspension than the one year recommended by the commissioner. Given the severity of Roberts’s conduct and her disciplinary history, I would suspend her for 120 days.

ABRAMSON, J., joins.

. Some of the Rules of Professional Conduct were amended substantially in 2009. Roberts’s conduct was covered by the earlier version of the rules.

. The KBA correctly notes that this is a misnomer because an attorney does not actually represent the estate, but instead represents the fiduciary representative or executor of the estate. See KBA Ethics Op. E-401, at 2 (Sept. 1997) (“[A] lawyer who represents a fiduciary ... stands in a lawyer-client relationship with the fiduciary and not with respect to the fiduciary estate or the beneficiaries.” (quoting American College of Trust and Estate Counsel, ACTEC Commentaries on the Model Rules of Professional Conduct, 28 Real Property, Probate and Trust Journal 865 (1994))). The opinion later states, "In repre*417senting a fiduciary the lawyer’s client relationship is with the fiduciary and not with the trust or estate, nor with the beneficiaries of a trust or estate.” Id. at 5. The opinion also states that the attorney for the fiduciary should not claim to be the attorney for the estate to avoid confusion. Id. The distinction is important, because if the attorney represents the estate, then, like the executor, he might have fiduciary duties to the beneficiaries. But in Kentucky, the lawyer is the lawyer of the executor, not the estate itself, and thus any duties the attorney owes are to the executor. Still, the fourth employment contract stated that Roberts was hired to represent “the Estate of Earl Manning.”

. For example, the charges that Roberts violated SCR 3.150(3), and thus violated SCR 3.130-3.4(c), by revealing the existence of the bar complaint to the probate court before the Inquiry Commission had issued a charge could not be reinstated. The rules include an express exception for revealing the existence of a charge to a tribunal. The KBA argues that the exception "logically relates to the situation where a court inquires why counsel is withdrawing.” Yet that is not what the rule says. Rather, "[n]othing in the rule shall prohibit the Respondent from discussing the disciplinary matter with any potential witness or entity in order ... to disclose to any tribunal.” SCR 3.150(3). Quite plainly, the rule allows disclosure to a tribunal without qualification. Also, despite the KBA’s argument otherwise, the main thrust of the confidentiality is to protect the attorney, which is why the KBA must obtain the attorney’s consent to disclose the information unless certain other conditions exist. This means Roberts acted properly when she disclosed the information, or at least did not violate any ethical rules, and the Board’s decision with respect to this count was correct.

. SCR 3.130-1.1 stated (and still states): "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

. SCR 3.130-1.5(d)(2) stated and still states: “A lawyer shall not enter into an arrangement for, charge, or collect ... a contingent fee for representing a defendant in a criminal case."

. SCR 3.130-1.7(b) stated: "A lawyer shall not represent a client if the representation of that client may be materially limited 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.”