To quote Mike Frisch of the Legal Profession blog..."I thought that I had seen just about everything in the area of attorney misconduct, but a hearing officer's report from Arizona proves me wrong..."
Here is the story of a lawyer in Arizona who is facing discipline for her conduct in handling a client's wife's estate. The client's wife committed suicide and the lawyer handled the probate matters. Within days of the death, the lawyer began telling her client that his deceased wife had 'come' to her (the lawyer), that the 'spirit' of the wife was 'inside' her and that she could communicate the wife's thoughts. Before long, the deceased wife made it known that she wanted the client to have sex with the lawyer. The lawyer continued to "channel" the wife's thoughts to the client for three years.
Based on these facts, an Arizona Supreme Court hearing officer filed a report on the lawyer's conduct recommending that she be suspended for six months.
Interestingly, though, the report is very careful not to take a position as to an important fact in the case: whether the lawyer was actually possessed by the spirit of the deceased wife. In fact, the report hints at the possibility that it might be true that she was possessed and asserts that the client, the lawyer and other witnesses genuinely believed the lawyer was channeling the deceased wife's thoughts.
This raises an interesting question. If you believe that the lawyer was, in fact, possessed by a spirit, then she was not lying or scheming; she was not in control of her actions. And if that is the case, can you really justify imposing discipline?
Well, you can, but only as to the fact that the attorney tried to deny that she ever claimed to speak for the dead wife. So, she could be disciplined for lying to the disciplinary authorities, but I don't think that is the worst part of her conduct. The clear implication here is that she schemed the whole thing to take advantage of the client. Also, there's the issue of the sexual relationship with the client while representing him. If the court is going to impose discipline for those, I think the court is going to have to make a factual determination as to whether the lawyer was, in fact, possessed or whether she was pretending intentionally or simply delusional.
The hearing officer's report is available here.
UPDATES (October 2010): Here and here
UPDATE (March 2011): here.