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It’s not often that a law professor gets to do research in the pages of People magazine. Finally, a scholarly excuse for my subscription to Us Weekly! But honestly, I’ve been following Anna Nicole Smith for quite a while, all the way back to her first foray into our lawyerly consciousness as the bereaved widow of J. Howard Marshall II.1 It’s none too surprising then that her current problems, although tragic, have once again landed her in the legal soup. The trials and tribulations of Ms. Smith�or Mrs. Howard K. Stern, 2 as she soon may be calling herself�invite a variety of reactions, from the astounded to the sympathetic to the profane. Lately, however, my musings have followed more of an ethical bent. Specifically, what light might legal ethics shed on Smith’s current troubles, with both her lawyer and her photographer friend claiming to be the father of her child? With this in mind, I turned to the American Bar Association’s Model Rules of Professional Conduct, the bible of the roving legal ethicist. THOU SHALT NOT COMMINGLE If this were a classroom exercise, I’d break it down into its components. The most important element? Stern’s relationship with Smith. The very first ABA Model Rule�Rule 1.1�requires lawyers to provide clients with “competent” representation. Now, the definition of competence can be stretched quite far, but Hollywood plot lines aside, the law is pretty clear on this one: No sleeping with your client. In fact, “No sexual relationships with clients” is pretty much the second thing you learn in legal ethics (the first being “Don’t mingle your money with your client’s money”). Essentially, the less mingling you do with the client, whether with your funds or your self, the better. Of course, both Stern and Smith are adults and may certainly decide to have a consensual sexual relationship. The key is that a lawyer must at minimum terminate the legal relationship before any other relations commence. Otherwise, the personal relationship might negatively influence the lawyer’s judgment in decisions about the client’s case�leading to, for example, bad advice regarding the perfect storm of publicity invariably accompanying a celebrity birth. In fact, if Stern did not first resign as Smith’s lawyer, it is likely that his intimate conduct with Smith violated a number of the Model Rules. For starters, Rule 1.2, Allocation of Authority, states, “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” By having relations with a client, a lawyer may gain an authority over her that may extend to her legal decision-making. Thus, if they disagree about any legal matters, he might not defer to her decisions or even consult with her about his actions�such as, say, announcing to the world that he fathered her newborn daughter. (Any failure to consult one’s client in any legal decision would also implicate Rule 1.4, Communication.) Like the mythical Hydra, however, disposing of one Model Rule just ensures that another one rears its head. This time it’s Rule 1.6, Confidentiality of Information, which dictates, among other things, that a lawyer “shall not reveal information relating to the representation of a client unless a client gives informed consent.” So here’s our first problem: Assuming, as we are, that our fictional lawyer is sleeping with his fictional client, that said fictional lawyer has allegedly impregnated said client, and that there are some competing paternity claims, what is the best course for the lawyer to pursue? Is it (a) withdraw from the representation of the client and advise her to seek objective counsel; (b) withdraw from the representation and engage counsel of his own to litigate the paternity claim; (c) withdraw from the representation, engage his own counsel, and appoint a guardian pro tem for the child; or (d) all of the above, while also retaining complete confidentiality of the client’s information, including any client information that affects his personal interests? Apparently, Stern instead chose (e) continued representation of the client, failure to retain counsel for himself or the child, and disregard for the confidentiality of the client’s information. Stern, an overachiever, decided to accomplish this last goal in most dramatic fashion by outing himself as the putative father on “Larry King Live.” And although there is no specific Rule 1.6 prohibition on “Larry King Live” appearances (not even in the Comments�trust me, I looked), I think we can safely assume that flaunting your client’s secrets on national television is verboten. IN WHOSE BEST INTEREST? So what other rules might Stern have violated in his continuing role as lawyer, companion, impregnator, and (possible) future husband of Smith? One rule that comes to mind is Rule 1.7, Conflict of Interest for Current Clients. Subsection (a)(2) warns against representing a client if “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the lawyer.” Even more specifically, Comment 12 of the rule, addressing personal-interest conflicts, plainly states that “a lawyer is prohibited from engaging in sexual relationship with a client unless the sexual relationship predates the formation of the client-lawyer relationship.” Thus, assuming that Stern’s relationship with Smith was sparked only after he got intimate with her (legal) briefs, his continuing representation of Smith would be a conflict of interest from the moment the sexual relationship began. Under the current Model Rules, moreover, Smith could not give informed consent for Stern to carry on as her attorney�this is not what the ABA had in mind by “waivable conflicts.” That Stern is now battling both a paternity suit and a parental-fitness investigation by Larry Birkhead, photographer and former boyfriend of Smith, only complicates the matter. For example, under Rule 1.7, Comment 10, “the lawyer’s own interests should not be permitted to have an adverse effect on representation of a client. . . . [I]f the probity of a lawyer’s conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice” (emphasis mine). Not to cast any aspersions on Stern’s general probity, but it would be difficult for any person to be objective about a lawsuit challenging his paternity and alleging unfitness to be a parent. So to serve as the lawyer for not only yourself3 but also your client/girlfriend/co-parent in that situation both harms your own claims and disqualifies you as competent counsel for your client. Indeed, if he is now representing himself, Smith, and the baby, Stern may hit the trifecta of unprofessionalism. DO NOT GO THERE Finally, even if Stern claimed that Smith was a “Client with Diminished Capacity,” thereby placing him under the strictures of Rule 1.14 (and guaranteeing a certain unpopularity with the missus), this would not extricate him from his legal jam. Rule 1.14(a) dictates that “when a client’s capacity to make adequately considered decisions in connection with a representation is diminished . . . the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.” Under no imaginable circumstances has Stern maintained a “normal” client-lawyer relationship with Smith. In fact, his behavior is even more inexcusable if Smith has truly been operating under diminished capacity, perhaps because of the sudden death of her son, Daniel. Among other things�and not just as a matter of legal ethics�Stern should be feeling shame for taking advantage of the situation to plaster himself on the front pages of the tabloid press. Taking advantage of your girlfriend’s dubious celebrity is one thing; violating the Model Rules is quite another! Assuming all the tabloid facts offered into evidence, the Anna Nicole Smith/Howard K. Stern relationship is a case study of legal ethical behavior gone horribly awry. I haven’t even gotten to all the violations Stern may have committed under Articles 3 or 8 of the Model Rules. And there’s another whole screed that I could pen on his appropriate punishment.4 But because of space constraints and more pressing tabloid reading�I mean research�I will leave you with this final plea: When you come to that fork in the road of legal ethics, take it5�along with the Model Rules. Laura I. Appleman is an assistant professor of law at Willamette University in Salem, Ore. 1 Not to be confused with J. Howard Marshall III, son of J. Howard Marshall II and also recently deceased. Smith’s ability to outlive and outlast her husband as well as her opponents should serve notice on all future suitors and plaintiffs. 2 That is, Howard K. Stern, attorney at law, not Howard Stern, radio personality, who has his own legal problems. 3 And we all know what they say about self-representation: You have a fool for a client. 4 Legal punishment, that is. One could argue that the hell in which Stern has entangled himself will be sufficient moral punishment. 5 Apologies to Yogi Berra.

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