The attorney-client privilege is one of the most sacrosanct privileges in American jurisprudence. Any communication between a client and his or her attorneys is absolutely privileged and the inadvertent disclosure of such a communication does not waive the privilege. If such a privileged communication is violated, this can be considered legal malpractice.
Clayton divorce attorney Susan Hais and her firm have been ordered to pay a St. Louis County resident $25,000.00 for penalties for purposely using intercepted e-mails in divorce custody litigation. In the case involving the Hais law firm, the Court found that the Hais law firm obtained the intercepted e-mails from their client, who had unauthorized access to her ex-husband’s e-mails. Lawyers are trained not to violate these rules, and the Hais law firm should have known that these communications were privileged and not subject to use in the trial. The Judge’s ruling also was a prelude to a disciplinary complaint against Susan Hais and her law firm, which was instituted by the judge. If she is found to have violated the Rules of Professional Conduct, Susan Hais could have her law license suspended or even taken away completely.
On March 15, 2011 the Hon. Barbara Wallace, a Circuit Judge in St. Louis County sitting in a domestic relations division, issued a written opinion finding fault with the actions of Susan Hais and her partners in the use of intercepted e-mails in the divorce litigation. Specifically, the Court found that the firm encouraged their client to it continue to intercept her ex-husband’s e-mails and also incorporated the use of the e-mails into their litigation strategy. The Court found that the Hais lawyers should have known that this was prohibited under the Rules of Professional Conduct, especially since many of the e-mails involved privileged communications between Michael Howard, the father involved, and his prior attorneys. The existence of the e-mails came to light after they were produced in a settlement conference.
The imposition of a $25,000.00 sanction underscores the Judge’s extreme displeasure with the conduct and behavior of the Hais law firm. In addition, the Judge ruled against the Hais’s client by taking away full legal custody from her. This is an extremely adverse result, and may also subject the Hais law firm to a legal malpractice claim by the client. The combination of the sanctions order, disciplinary complains and a potential legal malpractice claim creates huge toxic environment for the Hais law firm.
Clients may seek civil money damages against their representatives for legal malpractice if their actions violate certain court rules that result in an adverse result against the client. In the instant case, the Hais client may claim that, but for the Hais law firm’s actions in using e-mails, she may have prevailed in litigation. It should be noted that the $25,000.00 sanction was not entered against the client, but rather against the Hais law firm.
The Hais law firm had asked the Missouri Court of Appeals to reverse the Judge’s decision; however that was denied on May 5, 2011. The Missouri Court of Appeals did not explain its decision to deny the Hais law firm’s request. Hais may now ask the Missouri Supreme Court to review the case. If the Missouri Supreme Court refuses to review the case, the sanctions will stand, and the Hais law firm will have to pay the penalty or risk further judicial discipline.
This unusual case involving e-mails is uncharted waters for many attorneys. With the advent of Facebook, Twitter and other social networking sites, electronic communications are becoming more and more a factor in divorce litigation. What sets this case apart from simple Facebook posts is that these were clearly protected communications sent via e-mail between a client and his attorney. The Court concluded that the Hais law firm should have known better and acted with poor judgment and possible improper motives.
If you believe your lawyer has acted improperly and it has affected your case, you should consult with attorneys who are qualified to handle legal malpractice claims like The Meehan Law Firm. The Meehan Law Firm has been representing injured clients for over twenty-six (26) years and has represented many clients who have been damaged by their lawyer’s misbehavior. Please call The Meehan Law Firm with any questions you might have on these types of situations.