ATTORNEY DISCIPLINE ARISING OUT OF CONDUCT

IN THE ATTORNEY’S OWN DIVORCE

As family law practitioners are well aware, an attorney owes the court a duty of honesty and candor. Model Rules of Professional Conduct 3.3; Model Code of Professional Responsibility DR 7-102; DR 7-106. The failure to abide by these rules can result in censure, suspension, or disbarment.

The duty of honesty and candor applies to an attorney who is involved in a domestic relations case, even where that attorney is represented by competent counsel. Webb v. Webb, 16 Va. App. 486, 431 S.E.2d 55 (1993) (attorney who drafted separation agreement for himself and his wife owed the wife and the court a "special duty" of candor; failure to fulfill this special duty may result in divorce court disregarding separation agreement). Quite significantly, the failure to fulfill this duty as a party, not a litigator, to a divorce action can also result in censure, suspension, or disbarment.

A number of cases demonstrate that an attorney who is a party in a domestic relations dispute can face disciplinary proceedings for conduct undertaken in connection with the dispute. In In re Finnerty, 418 Mass. 421, 641 N.E.2d 1323 (1994), an attorney misrepresented in his financial affidavit his net worth by several hundred thousand dollars by failing to list several valuable assets. The ethics committee recommended a six-month suspension, and the state Supreme Judicial Court upheld the suspension.

In In re Warren, 888 S.W.2d 334 (Mo. 1994), the Missouri Supreme Court upheld the six-month suspension of an attorney who failed to pay his court-ordered child support. The court found that the attorney's conduct constituted moral turpitude, calling into question his judgment and honesty.

In Colorado v. Kolenc, 887 P.2d 1024 (Colo. 1994), the grievance committee recommended a three-year suspension for an attorney who failed to pay his child support obligations to two ex-wives and assaulted his third wife. These actions by the attorney had resulted in incarceration for the attorney and numerous contempt citations. The attorney also violated restraining orders and consumed alcohol contrary to court order. The Colorado Supreme Court decided that disbarment, rather than suspension, was appropriate. The court opined that the attorney's conduct, which began shortly after he became a member of the bar, displayed a contempt for the law and administration of justice that was wholly inconsistent with and incompatible with the practice of law.

On the other hand, in Florida Bar v. Taylor, 21 Fam. L.Rep. (BNA) 1142, 11 ABA/BNA Lawyers' Manual on Professional Conduct 31 (Fla. January 5, 1995), the court clearly went against the rising tide by holding that an attorney who failed to pay child support could not be disciplined under state bar disciplinary rules absent a finding of fraudulent or dishonest conduct. Although the Florida Bar objected, the Florida Supreme Court adopted the recommendation of the referee that the attorney be found not guilty of violating bar rules for the failure to pay child support, because the issuance of the civil contempt order for $37,850 in child support arrears was more akin to a civil matter than a criminal matter subject to discipline. The court added, however, that it could and would discipline an attorney held in criminal contempt.

As a final observation, it is worth noting that some states, e.g. Florida, are considering amending their disciplinary rules to specifically provide for disciplinary proceedings against attorneys who fail to pay child support. See Note, 16 Journal of the Legal Profession 289 (1991).