Ethics Alarms Encore: “Possessed Lawyer Ethics”

The best legal ethics story I have ever heard and probably ever will hear arose in Arizona in 2010. I have regaled CLE seminars with it many times since, and it is ever green. After I mentioned the case again today at a Federal Bar convention program, I found myself wondering if I had ever posted about the weird episode on Ethics Alarms. Indeed I had, but it was way back in September of 2010.Here’s how long ago that was: Instagram didn’t yet exist, the statement that Donald Trump would be the next President might get you committed, and the only commenter on the post was “JJ,” whom I have completely forgotten.

Clearly, it’s time for an encore, so here it is, slightly expanded.

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Is it unethical for a lawyer to claim she is possessed by a client’s dead wife?

This  question has been puzzling professional responsibility experts for decades. Okay, not really. In fact, surprisingly, it just doesn’t happen all that often. But in Arizona, a lawyer is now facing suspension for claiming that she was possessed by the spirit of a client’s dead wife, then lying about it under oath. The dead wife is being accused of illegal immigration.

OK, I made up that part, too.

Sorry.

The ABA Journal reports that the lawyer, Charna Johnson, began representing a client during his divorce proceedings. While the divorce was in process,  the client’s wife, who was fighting many demons even before she got in the possession business, committed suicide. Johnson then represented the husband in probate proceedings, but one day became convinced, according to her sworn testimony and that of two witnesses, that the client’s wife had possessed her, like that real demon, Pazuzu.

Rule 1.4 of the profession’s ethics rules requires a lawyer to inform a client of developments that might affect the representation, so Johnson correctly told hers that his dead wife had moved in. (I think it is a requirement to tell your client if you have been possessed by anyone, not just the client’s wife. In fact, I think possession is a disability, but the question is moot: the client told Johnson thanks, but to carry on.)Meanwhile, the client’s theory was that his wife had come back to make up for the damage she caused in the marriage through her prescription drug use.

The dead wife was showing admirable accountability and responsibility, if true. But spiritual possession is inherently unethical, as anyone who has had to deal with Pazuzu could testify. Possession is a violation of respect, fairness, and autonomy, unless one has the informed consent of the one possessed, like in “Ghost,” when Patrick Swayze possessed Whoopi Goldberg. Whoopi was a good sport about that.

The nature of the lawyer’s alleged violations of the Arizona Rules of Professional Conduct center on Johnson’s—or at least her body’s—sexual overtures to the client husband. It is prohibited for Arizona lawyers to have sexual relations with their clients (Rule 1.8), but 1) there was no evidence that the flirtation went that far, 2) Johnson and the client agreed that it was the wife, who apparently got a little randy in Charna’s bod, sending suggestive e-mails. Still, most important of all,  there was no evidence that being possessed interfered with the quality of Johnsons’ representation.

Maybe the wife was pre-law in college and helped out.

A disciplinary hearing concluded that there was no violation of the core Arizona legal ethics Rule 8.4 by Johnson when she claimed to be possessed, since she believed it.  Personally, I would have explored whether she had violated ethical standards by aiding in the unauthorized practice of law (Rule 5.5) by the dead wife, which is a serious rules violation, and perhaps even splitting fees (a Rule 1.5 violation) with her. The situation raises other serious ethical issues —for example, could communications that passed from the client to Johnson still be privileged, if the dead wife was, you know, listening in? I think not. So Johnson was violating Rule 1.6, Confidentiality. Did the wife constitute a third person to whom Johnson’s duties created a conflict of interest with her representation of the husband? I would assume so: being possessed by someone has to be regarded as a close personal relationship.  If you don’t treat the person inside you well, watch out!  There is a question whether such a conflict can be waived by the client; if not, this was a Rule 1.7 violation. But the disciplinary hearing inexplicably ignored these issues.

In the end, however, it was determined that Johnson violated the Arizona rules prohibiting lawyer dishonesty, because in a hearing on another, unrelated disciplinary matter she was asked about “channeling” the dead wife’s spirit, and denied it. Afterwards Johnson claimed this was just a misunderstanding: she wasn’t channeling, which is when a live person allows a dead one to communicate through her (like Whoopi), whereas Johnson was actually possessed by the dead wife’s spirit, which is a different thing entirely. Nonetheless, the hearing officer lowered the boom on Johnson, writing, “To pretend that she did not understand the common vernacular of what channeling is cannot be believed.”

They are strict in Arizona.

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