Musick v. Musick

• Decision Date: 15 December 1994
• Docket Number: No. 22344,22344
• Citation: 192 W.Va. 527,453 S.E.2d 361
• Court: West Virginia Supreme Court
• Parties: Dana Ruth MUSICK, Plaintiff Below, Petitioner, v. Lynn Allen MUSICK, Defendant Below, Respondent.

Page 361

453 S.E.2d 361

192 W.Va. 527

Dana Ruth MUSICK, Plaintiff Below, Petitioner, v. Lynn Allen MUSICK, Defendant Below, Respondent.

No. 22344.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 21, 1994.

Decided Dec. 15, 1994.

Syllabus by the Court

1. 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.

2. "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." Syl.Pt. 1, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991).

3. "When an attorney is sought to be disqualified from representing his client because an opposing party desires to call the attorney as a witness, the motion for disqualification should not be granted unless the following factors can be met: First, it must be shown that the attorney will give evidence material to the determination of the issues being litigated; second, the evidence cannot be obtained elsewhere; and, third, the testimony is prejudicial or may be potentially prejudicial to the testifying attorney's client." Syl.Pt. 3, Smithson v. United States Fidelity & Guar. Co., 186 W.Va. 195, 411 S.E.2d 850 (1991).

Michael T. Clifford, Clifford, Mann & Swisher, L.C., Charleston, for petitioner.

Debra Kilgore, Burton & Kilgore, Princeton, for respondent.

WORKMAN, Justice:

This case arises upon certified question from the Circuit Court of Mercer County as a result of the Respondent's motion to disqualify the Petitioner's counsel from further representation in post-divorce proceedings. At the heart of this case is an acrimonious divorce as well as a close personal relationship between the Petitioner and her counsel which developed following the entry of the final divorce decree. The question presented is:

Whether Plaintiff's counsel, John P. Anderson, should be disqualified from representing the Plaintiff in post divorce proceedings involving interpretation and enforcement of the Final Divorce Order and also involving a post divorce petition for visitation modification, when Plaintiff and counsel are involved in a personal relationship which developed after the entry of the Final Divorce Order and which includes a sexual relationship?

The circuit court answered the question in the affirmative.

I.

The parties to this proceeding, Dana Ruth Musick, the Petitioner, and Lynn Allen Musick, the Respondent, were divorced by final order of the circuit court entered April 1, 1993. Petitioner was represented by John P. Anderson (hereinafter referred to as "counsel") in the divorce proceedings leading to the entry of the final order of divorce. Respondent was not represented by counsel prior to the entry of the final order. The final divorce order ratified the parties' property settlement and agreement, which included an award of custody of their two infant children to the Petitioner, with visitation rights awarded to the Respondent.

Subsequent to the entry of the final order of divorce, the Petitioner and counsel embarked upon a close personal relationship which includes a sexual relationship. On October 15, 1993, the Respondent moved the court to disqualify the Petitioner's counsel from further representation, alleging, inter alia, that counsel's continued representation of the Petitioner in post-divorce proceedings while engaging in a sexual relationship with the Petitioner is contrary to ethical standards. Respondent contends, additionally, that in the context of this domestic relations proceeding, the relationship at issue has resulted in counsel becoming personally involved in the proceedings to the extent that his professional judgment is impaired and that counsel may be a necessary witness as a result.

A hearing on the motion to disqualify was held on December 9, 1993. At the conclusion of the hearing, the trial judge decided to certify the above-stated question to this Court.

II.

Presently, there is no ethical standard under the West Virginia Rules of Professional Conduct which specifically addresses whether lawyers may ethically engage in sexual relationships with clients. Such a rule has been long in the making. Since 1987, the Committee on Legal Ethics ¹ of the West Virginia State Bar has debated the necessity of a specific standard of conduct regarding attorney-client sexual relations. A subcommittee was appointed in 1992 to study the issue. After numerous drafts and debate, a proposal was approved by the Board of Governors of the West Virginia State Bar and forwarded to this Court for review and approval. Upon study and review, we rejected the proposal as flawed in many respects and directed the West Virginia State Bar to submit a new proposal with supporting documentation for the need for such rule. We also directed the Clerk of the Court to research and prepare a proposed rule regarding sexual relations between an attorney and client.

On October 26, 1994, this Court voted unanimously to approve proposed Rule 8.4(g) to the West Virginia Rules of Professional Conduct for a period of public comment to conclude on January 1, 1995. The proposed rule provides:

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

* * * * * *

(g) commence sexual relations with the client during representation if the sexual relations are the result of intimidation, fraud, misrepresentation, coercion, or undue influence by the lawyer, or the lawyer knows or reasonably should know that the client's ability to consent to sexual relations is impaired by the client's emotional condition, financial dependency, or some other reason; and a lawyer shall not engage in sexual relations with the client, under any circumstances, if the representation involves a domestic relations action, except adoption. For the purposes of this section, 'sexual relations' is defined as sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal or gratification. Where a lawyer in a firm has sexual relations with a client, the other lawyers in the firm shall not be subject to discipline solely because of such sexual relations. Provided, however, that no person shall have standing to initiate a disciplinary complaint pursuant to this rule or assert this rule in any context or any forum including, but not limited to, any court in this State, except the aggrieved client, and any disciplinary complaint shall be dismissed or disciplinary investigation terminated immediately if the aggrieved client withdraws the complaint.

Clearly, it is a better practice for attorneys not to engage in sexual relationships with any client in any type of case. ² 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. ³ However, other rules of professional conduct may be violated by a lawyer's sexual relationship with his client.

III.

At the outset, we note that in Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112 (1991) this Court held that a circuit court judge has the inherent authority to do what is reasonably necessary for the administration of justice, and thus may disqualify a lawyer from representation in a case where that lawyer's representation may be in violation of the West Virginia Rules of Professional Conduct. ⁴ Specifically, we held that a circuit court judge may disqualify a lawyer where the lawyer's representation in the case presents a conflict of interest or where the lawyer will be a material witness. Id. at 461-462, 464, 413 S.E.2d at 116-117, 119. Before the trial court disqualifies a lawyer on the grounds that a lawyer's representation may conflict with ethical conduct, however, an adequate record must be made. Id. at 465, 413 S.E.2d at 120.

Respondent directs our attention to Formal Opinion Number 92-364 of the American Bar Association ("ABA") Standing Committee on Ethics and Professional Responsibility ("the committee"). In that opinion the committee recognized that no provision in either the ABA Model Rules of Professional Conduct or the ABA Model Code of Professional Responsibility addresses or specifically prohibits sexual relationships between lawyer and client. See ABA Comm. on Ethics and Pro.Resp., Formal Op. 92-364 (1992). The committee went on to find:

However, there are several provisions of the Model Rules that may be implicated by a sexual relationship, particularly one that arises after the formation of the attorney-client relationship. First, because of the dependence that so often characterizes the attorney-client relationship, there is a significant possibility that the sexual relationship will have resulted from exploitation of the lawyer's dominant position and influence and, thus, breached the lawyer's fiduciary obligations to the client. Second, a sexual relationship with a client may affect the independence of the lawyer's judgment. Third, the lawyer's engaging in a sexual relationship with a client may create a prohibited conflict between the interests of the lawyer and those of the client. Fourth, a...