Joshua Robinson, 38, a West Virginia lawyer, pleaded guilty on April 19 to a felony charge of "unlawful wounding" after he was arrested for going after a client with a baseball bat.
I suppose there are situations in which you can lawfully wound someone, but this was not one of them, and it poses some ethical questions to boot.
Robinson was arrested after a neighbor, observing one gentleman chasing another around the neighborhood whilst waving a baseball bat, called police. Turned out the chasee was one David Lee Gump II, one of Robinson's clients, and presumably the son of David Lee Gump the First. (When you are blessed with a name like "David Lee Gump," you see, you don't let it go to waste.) Robinson claimed that Gump had broken into his home, but a magistrate dismissed that charge for lack of evidence. Gump, on the other hand, said he had hired Robinson to work on his grandfather's estate, and had gone to Robinson's home to ask him why he had cashed a check made out to the grandfather. Although these kinds of lawyer-client disputes are often resolved through arbitration, Robinson chose to go with the bat instead.
The guilty plea means that Robinson faces up to five years in jail, but since he is an attorney the charge also poses ethical issues. His license was temporarily suspended in March because he had been jailed awaiting trial, and it is difficult to serve your clients' interests from jail (unless your clients are in there too). But the actual disciplinary opinion is still to come, which gives me the opportunity to speculate about what ethical rules might apply to Robinson's conduct in this case. Not surprisingly, most of the applicable rules are in the section on the "Client-Lawyer Relationship":
- Rule 1.1 imposes a duty of competence. The neighbor told police Robinson had been "swinging wild, like a madman," which might call this into question. On the other hand, he did connect at least once. This one seems like a tough call.
- Rule 1.2(a) requires a lawyer to "abide by a client's decisions concerning the objectives of representation . . . and [to] consult with the client as to the means by which they are to be pursued." Here, it seems unlikely that Gump agreed that hitting him with a baseball bat was within the scope of representation, or that Robinson consulted with him before doing so.
- Rule 1.3 requires a lawyer to "act with reasonable diligence and promptness," but so far as I can tell, the bat came out pretty quickly so Rule 1.3 may have been satisfied here.
- Rules 1.7-1.9: application of the conflict-of-interest rules depends to some extent on whether Gump was a current or former client. It sounds like he was a current client (although that status probably changed at some point during the incident). If so, Rule 1.7(b) precludes representation of a client if that representation "may be materially limited by . . . the lawyer's own interests . . . ." Here, it seems pretty clear that Robinson's representation of Gump was materially limited by his own interest in hitting Gump with a bat, so that seems like a violation.
- Under Rule 1.14, "[w]hen a client's ability to make adequately considered decisions in connection with the representation is impaired, . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client." There is no reason why this shouldn't apply just because the lawyer is the one causing the impairment, and so I think Robinson also violated this rule by continuing to hit his client with the bat. It does seem outside the scope of a "normal client-lawyer relationship."
- Rule 1.16 required Robinson to withdraw from representing Gump if, among other things, his "physical or mental condition materially impair[ed]" his ability to represent the client, and it seems like such impairment could result from a really powerful desire to hit the client with a bat. So, technically, he should have formally withdrawn before taking the first swing.
- You then have to drop down to Rule 8.4 (Misconduct) to find other rules that might apply. The breadth of this rule makes it problematic in many cases, although not this one. 8.4(b) forbids a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects." Nothing dishonest or untrustworthy here, since this was all done out in the open and the client had a chance to dodge. But beating up your client with a baseball bat likely is enough to raise a question as to your "fitness as a lawyer in other respects," so that really ought to do it.
By the way, West Virginia is one of the states in which it is an ethical violation to have sex with a client, unless you were already having sex with that person before he or she became a client. Rule 8.4(g). This prohibition is not as common as you might think, and I believe it is especially uncommon to see an ethical rule that goes so far as to actually define "sexual relations," as West Virginia's does (intercourse, or touching the "sexual or other intimate parts of the [lawyer or client]" for certain defined purposes). Anyway, this isn't relevant to the current story, just FYI.
I suppose there might be case law defining what the "other intimate parts of [a] lawyer" might be, but I also think I don't really want to know.
Link: Charleston Daily Mail
Link: West Virginia Rules of Professional Conduct
