I conducted a court-ordered mediation today in which one of the parties failed to show up. This party’s counsel explained she had told her client he did not need to attend. I was shocked. This attorney was shocked that I was shocked. Altogether shocking.
South Carolina Rule of Professional Conduct 3.4(c), forbids a lawyer from “knowingly disobey[ing] an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.” A couple of provisions of Rule of Profession Conduct 8.4 would appear to prevent an attorney from counseling a client disobey a valid court order. Rule 8.4(a) makes it professional misconduct for a lawyer to “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Rule 8.4(e) makes it professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.”
South Carolina Alternative Dispute Resolution Rule 6(b)(2), requires parties to “physically attend a mediation settlement conference unless otherwise agreed to by the mediator and all parties or as ordered or approved by the Chief Judge for Administrative Purposes of the circuit.” Thus if mediation is ordered, and the party is not excused from physically attending by the court or by all parties and the mediator, it is a violation of a court order for a party to fail to attend mediation–even if the party is ancillary to the dispute being mediated. While I can understand why the attorney might have felt the client’s presence wasn’t really necessary, I was amazed that attorney had counseled the client not to attend.
On only one occasion in my career have I counseled a client that she may refuse to obey a court order. In that case, the South Carolina Family Court had issued an order against my Florida-Defendant mother to relinquish custody of a Florida-resident child (a child who had never lived in South Carolina) to a South Carolina-Plaintiff father. In that circumstances I repeatedly informed the court, opposing counsels, and my client of my belief that South Carolina had no jurisdiction over that child. When the South Carolina family court issued an order giving the father custody of the child, I informed my client that she had every right to require the father to register the order for enforcement in Florida and that she wasn’t obligated to obey the South Carolina until a Florida court required her to. I informed plaintiff’s counsel that I was counseling my client to openly refuse to obey the South Carolina order based on an assertion that no valid obligation existed. No one ever attempted to register that order in Florida for enforcement and the case was eventually struck.
Counseling a client to disobey a court order is absolutely proper but only under very limited circumstances: 1) the refusal to obey the court order is not concealed or hidden; and 2) the refusal is based on an assertion that no valid obligation exists. Counseling a client to ignore a court order because compliance is silly or inconvenient is professional suicide.