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Does Having an Affair With a Client's Spouse Equal Ineffective Assistance of Counsel?

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By George Khoury, Esq. on August 27, 2018 11:20 AM

A recently filed habeas appeal raises a rather curious question that practitioners will want to know the answer to (despite the fact that the answer probably won't actually matter to the vast majority of us). Does having an affair with a client's spouse equal ineffective assistance of counsel?

The case involves a former hedge fund manager/current inmate claiming that his attorney's affair with his wife rendered his attorney's counsel ineffective. The affair began during the case, and surprisingly, the attorney and wife ended up getting married. However, according to Bloomberg Law, the case may be a bit of a longshot.

Sex and Conflicts

According to the report, the representation didn't last long after the then-defendant learned his wife was having an affair with his attorney. And rather than hire a new private attorney, he went ahead with an "overworked poor quality public defender." He was told by both his now-former-wife and former-attorney that he shouldn't mention anything as it could be damaging for the former couple's three children.

Notably, the issue of the affair was not raised to the court for nearly five years. The defendant alleged that his attorney threatened to deny his children financial support, and extracurricular activities, if he spoke up about the affair. And while this may account for some delay, the attorney and former wife were married only three months after his conviction.

Apparently, no longer fearing those threats a few years later, in the habeas petition, it was mentioned that during the representation the lawyer sent the wife an email saying: "I love you and I can't wait to see you in your underwear." He has sought additional discovery into the emails exchanged between his attorney and former wife.

Inappropriate Isn't Ineffective

The Bloomberg report notes that, while rare, this isn't the first time a court has been asked to rule on similar facts and claims. Unfortunately for the jilted defendant, courts have found in the past that unless the relationship led to something more than just a personal conflict of interest, or there was a showing that the lawyer failed to act competently or intentionally ruined the case, an affair alone wouldn't rise to the level of ineffective assistance.

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