Disciplinary Board of the Supreme Court v. Hankey
2012 ND 206, 821 N.W.2d 839, 2012 WL 4857574 (2012)
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Rule of Law:
An attorney engages in a non-consentable conflict of interest by simultaneously representing an alleged perpetrator and their victim in the same criminal matter. Additionally, making a knowingly false statement to a prosecutor constitutes professional misconduct involving dishonesty, regardless of whether the lie provides a direct benefit to the attorney.
Facts:
- An individual was alleged to have committed the crimes of aggravated assault and terrorizing against a victim.
- Attorney Blake D. Hankey undertook representation of both the alleged perpetrator and the alleged victim in relation to these crimes.
- Hankey had both clients sign a single retainer agreement to formalize the dual representation.
- Due to a no-contact order between the two clients, the victim signed the agreement in Hankey's office, while the perpetrator signed it at a correctional center.
- While communicating with the Assistant State’s Attorney about the perpetrator's case, Hankey did not disclose his representation of the victim.
- When the Assistant State’s Attorney learned of the dual representation and confronted Hankey, he falsely stated that he had cleared the conflict with his law partners.
- Hankey also had the clients execute a waiver of the conflict of interest.
Procedural Posture:
- The Disciplinary Board served attorney Blake D. Hankey with a Summons and Petition for Discipline.
- The Petition alleged that Hankey violated professional conduct rules for conflict of interest (1.7(a)) and misconduct involving dishonesty (8.4(c)).
- A Hearing Panel was appointed and conducted a hearing on the matter.
- The Hearing Panel concluded that Hankey violated the conflict of interest rule but did not violate the rule against dishonesty.
- The Hearing Panel recommended that Hankey be reprimanded and ordered to pay costs.
- The Hearing Panel's findings, conclusions, and recommendations were forwarded to the Supreme Court of North Dakota for review.
- No objections to the Hearing Panel's report were filed by either party.
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Issue:
Does an attorney violate the rules of professional conduct by simultaneously representing an alleged criminal perpetrator and the victim in the same matter, and by making a false statement to a prosecutor about having cleared this conflict with his law partners?
Opinions:
Majority - Per Curiam
Yes. An attorney violates the rules of professional conduct by representing clients with inescapably adverse interests and by engaging in conduct involving dishonesty. The court found clear and convincing evidence that Hankey violated N.D.R. Prof. Conduct 1.7(a) because the interests of an alleged perpetrator and a victim are unescapably adverse, making the conflict non-consentable. Furthermore, the court disagreed with the Hearing Panel's conclusion on the second issue, finding that Hankey's admitted false statement to the prosecutor was a clear violation of N.D.R. Prof. Conduct 8.4(c), which prohibits conduct involving dishonesty that reflects adversely on a lawyer’s fitness to practice. The court reasoned that the act of making a false statement itself constitutes misconduct, irrespective of whether it provided Hankey any benefit or should have mattered to the prosecutor.
Analysis:
This case reinforces the absolute prohibition against representing clients with directly and fundamentally adverse interests, particularly in the perpetrator-victim context, deeming such conflicts impossible to waive. It also clarifies that any intentional misrepresentation by an attorney, especially to opposing counsel, constitutes a violation of the duty of honesty, regardless of the misrepresentation's practical effect or motive. The court's decision to overrule the hearing panel on the dishonesty charge underscores a strict interpretation of Rule 8.4(c), signaling that the act of deceit itself, not its outcome, is the basis for discipline. This sets a clear standard that lawyers must be truthful in their professional dealings, even about matters that may seem inconsequential.
