Affairs of the Heart

Except for those who practice family law, it’s not often that love and the law intermixes for attorneys. One attorney provides a cautionary tale of when affairs of the heart can lead to dire consequences. In In re Hawkins, an attorney accepted an employment offer to be general counsel from the owner of a company, while the attorney was having an affair with the owner’s, i.e. his new boss’s, wife. 320 S.C. 57, 463 S.E.2d 92 (1995). The boss relied on his attorney for legal advice for both business and personal matters. Eventually, the boss sought his attorney’s advice for his marital problems. Although the attorney knew the boss’s wife had retained her own counsel, the attorney advised his boss not to retain a matrimonial lawyer. The attorney also discouraged his boss from hiring an investigator even after the boss found some suspicious loves notes to his wife that were signed “D”—the attorney’s first initial.

This attorney was bold enough to suggest his boss purchase an $800,000 emerald ring for his wife, and he also advised his boss to buy a custom-made boat and other pricey gifts to appease the wife. These expenses had a detrimental effect on the boss when he and his wife ultimately separated and divorced. The boss also claimed the attorney’s affair prejudiced his business because the boss was unable to give his business the attention that it needed.

The boss eventually brought a civil suit against the attorney, which resulted in a judgment against the attorney for malpractice and breach of fiduciary duty plus a hefty verdict of $350,000 in actual damages and $7 million in punitive damages. On top of that, the attorney was suspended from the practice of law for six months for accepting employment when his professional judgment on behalf on his client was affected by his own personal interests in the affair with his client’s wife.

Aside from the obvious moral of this story, it can serve as a reminder to all of us who confront potential conflicts of interest. I could create an entire blog to discussing conflicts of interest, but there are some basic guidelines. We owe our clients a duty of loyalty. Although it is tempting to take on a new client—as I am sure the attorney in the story above was tempted to take a job with his lover’s husband—it is better to err on the side of caution when a potential conflict of interest arises. A simple test to determine if a conflict of interest exists is whether “a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.” Matter of Anonymous Member of the South Carolina Bar, 315 S.C. 141, 432 S.E.2d 467 (1993). Practically speaking, call a friend in the bar, explain the situation, and see if the representation passes the “smell” test. It’s not worth it to take on a representation for short-term gains when it could have a lasting impact on your career through a disciplinary proceeding or a malpractice suit.