{"id":4838,"date":"2004-05-19T14:58:17","date_gmt":"2004-05-19T18:58:17","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2004\/05\/19\/this-barrister-cant-barter\/"},"modified":"2011-08-05T14:58:45","modified_gmt":"2011-08-05T18:58:45","slug":"this-barrister-cant-barter","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2004\/05\/19\/this-barrister-cant-barter\/","title":{"rendered":"This Barrister Can’t Barter"},"content":{"rendered":"

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A Texas appellate court won’t let divorce lawyer Mary McKnight appear at trial for Bill Sanders, because the client “did carpentry work on McKnight’s Dallas law office to help defray the fees he incurred in his divorce proceedings.”  According to the 5th Court of Appeals in Dallas, the arrangement turned the lawyer into her client’s employer, and thus a witness on issues relating to “Bill’s abilities to care for the minor child or pay child support.” (Texas Lawyer<\/EM>\/NYLawyer<\/EM>, Lawyer Ousted From Case for Not Taking Cash<\/FONT><\/A>, May 19, 2004)<\/FONT><\/FONT><\/P>
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The memorandum opinion in In re Joyce Elizabeth Sanders<\/A> turned to Texas disciplinary Rule 3.08<\/A> for guidance in determining disqualification of counsel, since McKnight was being called as a witness by opposing counsel.  The court reasoned:<\/FONT><\/P>
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\"oil “After reviewing the record, we conclude the trial court abused its discretion in denying the motion to disqualify McKnight from acting as trial counsel for Bill. McKnight’s testimony as an employer relating to Bill’s abilities to care for the minor child or pay child support, and her possibly adverse testimony about when the employment began leads us to conclude a fact finder may be confused or mislead by McKnight’s dual roles.” <\/FONT><\/P><\/BLOCKQUOTE>
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The writ would allow McKnight to continue to act as counsel for Bill on pretrial matters and, if the requirements of 3.08(c) are met, other attorneys with McKnight’s firm may act as advocate for Bill in any adjudicatory proceeding in this case.  In a strong Dissenting Opinion<\/A>, Justice Whittington argued: <\/FONT><\/P>
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The “employment” referred to by the majority is the performance of handyman jobs that Bill Sanders did for Mary McKnight after hours to help defray the cost of attorney’s fees. The record before us supports the trial judge’s determination that any confusion caused by McKnight’s testimony regarding Bill’s completion of the jobs for her would be de minimis.<\/FONT><\/P>
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        Additionally, disciplinary rule of professional conduct 3.08 should not be used as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice because reducing the rule to such a use would subvert its purpose. . . . That is precisely what happened in this case.<\/FONT><\/P><\/BLOCKQUOTE>
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\"hammer\" The Texas Lawyer article points out that the decision “troubles some family law attorneys who say the opinion could kill a long tradition of bartering between lawyers and low-income clients<\/STRONG>.”  Lawyer McKnight says it will “have a detrimental effect on solos and small-firm lawyers who sometimes accept services in exchange for representing clients who have no other way to pay them.”   <\/FONT><\/P>
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