Somewhere in the top half of the long list of Bad Ideas is this one: have an affair with a client. Much closer to the top of that list is this one: have an affair with a client who is still married to another client, and do that in one of the few states that still let people sue for "alienation of affection."
The Mississippi Supreme Court ruled last week that Ronald Pierce does indeed have to pay the $1.5 million verdict against him in a lawsuit filed by the guy whose affections he alienated. Pierce had represented the man and his wife in a medical-malpractice case, a representation that ended not very long after the husband (and his private investigator) learned of the affair in October 2000. The couple had separated the month before, but were still married.
That made Pierce liable for "alienation of affection," a tort that has been abolished in most states but still exists in a few, including North Carolina and (obviously) Mississippi. According to this description of the tort as interpreted in North Carolina, it is not exactly a cause of action for adultery, but rather for wrongful acts that destroyed (alienated) the affection between parties to a marriage (reportedly, in-laws have also been defendants in such lawsuits, which might be something to keep in mind). Adultery itself (meaning the physical act) is a different tort, which is referred to in North Carolina, hilariously, as "criminal conversation." Mississippi may not recognize that tort, since I assume it would have been included otherwise.
In his deposition, Pierce did not quite admit to criminally conversing with the wife -- he took the Fifth -- but since she then admitted it in her deposition, it really didn't matter. Given the evidence, most of Pierce's arguments were on fairly narrow legal issues. For example, he argued that the statute of limitations barred the emotional-distress claim, an argument that failed because Pierce had "flaunt[ed] his involvement" in front of the husband, which made this a continuing tort and tolled the statute. Thus, Pierce's apparent choice to be a jerk about the whole thing meant he lost a shot at knocking out a $1 million portion of the judgment. Jerks should take note of this ruling.
Equally unsuccessful was Pierce's argument on the breach-of-contract claim. Unsurprisingly, the husband argued that sleeping with his wife was not what he had hired Pierce to do, and more specifically that doing so was a breach of Pierce's fiduciary duty. Seems reasonable. But Pierce argued that this was essentially a claim for legal malpractice, which under state law meant the husband should have offered expert testimony on the standard of care. Well, sometimes, the court pointed out, it doesn't take an expert:
Clearly, based on the facts of this case, [plaintiff] did not need an expert to testify as to the standard of care owed by an attorney to his client. Ordinary jurors possess the requisite knowledge and lay expertise to determine if an adulterous affair between an attorney and his client’s wife is a breach of a duty owed by an attorney to his client. Expert testimony would not lend guidance under this circumstance.
I guess we'll just have to wonder what kind of expert testimony would have been presented on that issue.
Link: ABA Journal