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ETHICS SPOTLIGHTAttorneys and Their Clients Cannot Be Co-conspirators Laura W. Morgan,Senior Attorney for Family Law, National Legal Research Group Executive Editor, Divorce Litigation In Heffernan
v. Hunter, No. 98-1749 (3d Cir. August 26, 1999), Joanne Kelly and
Robert W. Hunter had been romantically involved for five years. When the relationship was ending, the SEC began investigating
Hunter for a series of suspicious stock transactions. SEC investigator John J. Heffernan interviewed Kelly, who
claimed to have information about Hunter’s insider trading activities. Heffernan and Kelly then began a
romantic relationship. Heffernan
then asked to be removed from the case, and he and Kelly were married. Kelly then
sued Hunter for damages for allegedly molesting her daughter. Hunter then sued Heffernan,
alleging that Heffernan induced Kelly to falsely accuse Hunter of the
child molestation. Hunter
also claimed that Heffernan abused his position with the SEC to furnish
Kelly with information that she could use to extort a settlement from
him in her civil suit. During the pendency of the suit, Hunter’s attorney George
Bochetto made several press releases and gave a number of interviews
about the case. As a
result, the more titillating aspects of the case were widely reported. After
Hunter’s case against Heffernan was dismissed, Heffernan sued Hunter
and his attorney Bochetto for violating 42 U.S.C. § 1985, which mades
it illegal to conspire to deprive a person of their civil rights by
intimidating witnesses, jurors, parties, or interfering with a federal
officer. The gravamen of Heffernan’s suit was that Bochetto and his
client used the groundless lawsuit against him and disseminated false
information about him to intimidate him and prevent him from carrying
out his responsibilities as a witness and federal officer. The
district court dismissed Heffernan’s suit, holding that a lawyer and
his client cannot be co-conspirators when the lawyer acts on behalf of
the client, even when the lawyer acts unethically. “Attorneys might use unethical
means in representing their clients and yet remain squarely within the
scope of their agency,” the court concluded. This case
has troubling aspects. Will
any conduct by an attorney in pursuit of his/her client’s
interests be excused (apart from catching hell from the state bar) on
the basis that the attorney was acting within the scope of his/her
employment? And how does this case square with those domestic relations
cases wherein a spouse was able to state a cause of action under the
Racketeering Influenced Corrupt Organization (RICO) acts for a
conspiracy between the other spouse and his/her attorney to hide and
dissipate marital assets? E.g.,
Perlberger v. Perlberger, 1998 WL 76310 (E.D. Pa. 1998), reported
24 Fam. L. Rep. (BNA) 1221 (1998).
The Heffernan case seems to be a broad endorsement of
insulating an attorney from malpractice liability even when the conduct
engaged in is unethical. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690 © 1999 National Legal Research Group FAM-LAW-LIT:
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