Friday, November 10, 2006

Lies My Client Told Me

In a few weeks, the Oklahoma Bar Association will adopt the American Bar Association's Model Rule of Professional Conduct 3.3 which requires an attorney to rectify any false representation of material fact made by him, his client or his client's witnesses up to and including disclosure to the bench if the client refuses to rectify the situation himself. In tough cases where the facts are hotly contested, this will be an ethical minefield for plaintiff's attorneys and especially for those whose client's credibilty has already been called into doubt. Other states have had this rule in place for a while. What follows is an excellent article on Model Rule 3.3 as applied in the Massachusetts Bar.



Roger Geller and Susan Strauss Weisberg

Is this a familiar nightmare? You represent a plaintiff in a car accident case. Liability is clear. The only issue is the extent of your client's damages, including a back injury. Two days ago, your client testified in a deposition that he never had been in an accident before and never had any other injuries to his back. Today, you run into a friend of the client's who knows you are representing the client and asks whether you are handling his first or second accident. You call your client immediately. The client admits to you that a year before the car accident, he had hurt his back in a fall at the friend's house. He tells you that he never made a claim for the earlier injury and hadn't said anything about it because he was afraid it would ruin this case. The client says that he will pursue the case no matter what and that he does not want to disclose the prior accident or injury. What should you do?

With only a few exceptions, Mass. R. Prof. C. 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client unless the client consents. The lawyer's obligation to maintain confidentiality is subordinated, however, to obligations owed to a tribunal under Mass. R. Prof. C. 3.3. If a client has engaged in a criminal or fraudulent act affecting a tribunal, or if the lawyer has offered material evidence that is later discovered to be false, the lawyer must rectify the fraud even if, as a last resort, rectification requires disclosure of a client confidence otherwise protected under Rule 1.6. Your client lied during his deposition rather than before a judge or jury, and the deposition transcript has not been submitted in court. Although there are no Massachusetts cases expressly ruling on the applicability of Rule 3.3 to pretrial discovery, Bar Counsel takes the position that a deposition should be treated in the same manner as a proceeding before a tribunal because of its potential use as evidence and its impact on the judicial process. This is consistent with the position of the American Bar Association's Standing Committee on Ethics and Responsibility. In ABA Formal Opinion No. 93-376 (1993), the Committee determined that Rule 3.3 applies to depositions, noting that reliance upon their content could be "outcome determinative, resulting in an inevitable deception of the other side and subversion of the truthfinding process which the adversary system is designed to implement." Comment [6] to Mass. R. Prof. C. 3.3 is to the same effect. In addition, Comment [2A] to Rule 3.3 advises that the rule is "intended to guide the conduct of the lawyer as an officer of the court as a prophylactic measure to protect against the contamination of the judicial process." See also Matter of Aronson, 14 Mass. Att'y Disc. R. 12 (1998) (lawyer's misconduct during deposition violated former Disciplinary Rule 7-102(C)(2) and (6), governing conduct before a tribunal).

The obligations created by Rule 3.3 apply only when the lawyer "knows" that the client's testimony is false. In the nightmare scenario, there is no question about the lawyer's knowledge. The client admitted to the lawyer that he had lied. In less definitive circumstances, the lawyer must consider all information available in reaching the determination. Knowledge is defined by Rule 9.1(f) as "actual knowledge of the fact in question." The rule also provides that knowledge may be inferred from all the circumstances. Willful blindness is the equivalent of knowledge. See Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416-17 (1998). If the lawyer does not know that the evidence is false, the lawyer must preserve the client's secrets.

A lawyer who knows that a client has made a misrepresentation in a deposition must also determine the materiality of the misrepresentation. Rule 3.3(a)(4) requires a lawyer to take remedial measures when the client has offered "material" evidence that the lawyer knows is false. In our scenario, the client's lies concern damages, clearly a material issue in the litigation.

Even where the lawyer knows of a material misrepresentation, disclosure is not the initial step in resolving the problem and may not necessarily be the ultimate remedy. The lawyer must first try to persuade the client to rectify the situation. This is good advice to the client whether or not the misrepresentation was material because even an inconsequential misrepresentation under oath could seriously undermine the client's credibility in the case. Disclosure by the client can also ameliorate the impact of having falsely testified in the first place, particularly if the correction to the record is prompt and accurate. Under some circumstances, it might be possible to amend the transcript and rectify the misrepresentation without outright disclosure that the client had lied. See ABA Formal Op. 93-376. In any case, advice to the client should include the warning that the lawyer will have to rectify the record if the client does not. See Comment [6] to Rule 3.3.

If efforts to persuade the client to rectify the fraud fail, the lawyer is required by Rule 3.3(a)(4) to take "reasonable remedial measures." See Comment [5] to Rule 3.3. The question then arises whether the lawyer's obligations can be satisfied simply by withdrawing from the case. The client's lies and refusal to correct the record give the lawyer grounds for withdrawal under Mass. R. Prof. C. 1.16(b), and the lawyer has to withdraw if staying in the case would make the lawyer a participant in the client's fraud. Mass. R. Prof. C. 1.16(a)(1) (withdrawal required when continued representation will result in violation of rules of professional conduct). Upon withdrawal, the lawyer could disaffirm any positions taken by the lawyer that were based on the client's misrepresentations. Mass. R. Prof. C. 1.6, Comment [16].

In our scenario, however, withdrawal alone would not constitute a sufficient remedial measure. Rule 3.3(a)(2) requires a lawyer to disclose a client's fraud to the extent necessary to avoid "assisting" the fraud, even if the information is otherwise protected by Rule 1.6. Comment [2A] to Rule 3.3 establishes a special meaning of "assistance" that goes beyond the conduct associated with an aider or abettor or a joint tortfeasor. Under that special definition, a lawyer's mere failure to disclose an unrectified client fraud of itself constitutes assisting in the fraud Thus, the lawyer in our scenario would have to disclose the client's misrepresentations to the court or to opposing counsel even if the lawyer withdrew from the case. Moreover, after disclosure and rectification of the fraud, withdrawal might not be necessary.

What if the case is not in suit and instead, after making a settlement demand, you learn that you have misrepresented the client's medical or accident history in the demand letter sent to opposing counsel? In cases not before a tribunal, Mass. R. Prof. C. 4.1 creates a more limited duty to disclose information to third parties in order to avoid "assisting" a client's fraudulent act. "Assistance" has a narrower meaning under Rule 4.1 than under Rule. 3.3. See Comment [3] to Mass. R. Prof. C. 4.1. In addition, the lawyer's obligations under Rule 4.1 are limited by the duty of confidentiality under Rule 1.6. Those limits, however, are not absolute. Rule 1.6(b)(3) permits disclosure of a client's false statement "to rectify client fraud in which the lawyer's services have been used," and Rule 1.6(b)(1) allows disclosure to prevent the commission of a criminal or fraudulent act which is likely to result in "substantial injury to the financial interests or property of another." Consequently, Rule 4.1 can mandate disclosure when failure to do so will assist the client in perpetrating a crime or fraud on a third person that will result in "substantial" financial injury to another. The lawyer, in any event, cannot continue to represent the client to effectuate the settlement if the client fails to authorize correction of the erroneous information in the demand letter.

Finally, note that the obligations described in this article apply in civil cases only. Lawyers representing criminal defendants are subject to Mass. R. Prof. C. 3.3(e) and are obliged to respect the special constitutional protections available in criminal cases.

Sunday, November 05, 2006

Is Col. John Mark Young the Anti-Christ?

I have been at various times amused, shocked and disgusted by GOP attack ads aimed at Col. John Mark Young who is running for the State Senate from Sapulpa. If you listen to the ads, Young is personally responsible for rising health care costs, violent crime on our streets and the moral decay of our nation. Not a bad job for a country lawyer from a small town in Oklahoma. If he has that much influence he must be the anti-Christ or at least one of his trusted lieutenants.

The John Mark Young I have met is a different man. By nature he is quiet, unassuming and polite. He comes from one of Sapulpa’s old legal and political families. I met Col. Young through his father who is a respected figure in a local Christian men’s organization. Sen. John Young Sr. is a wonderful old lawyer and Christian gentlemen whose wit is matched only by his fire. Col. Young has spent his life in service to both his community and his country. Young has been an officer in the Marine Corp Reserve all of his adult life and he has served multiple tours in the Middle East. But, you know how it is with “evil” people. They can mask their misdeeds and terrible conspiracies with good works and community service and by so doing trick good people into supporting them. I guess that’s what the GOP wants us to believe.

The GOP media machine accuses Col. John Mark Young of representing criminals. He does that. Our constitution and laws provide that citizens accused of a crime have the right to an effective defense. The criminal defense lawyer stands between the state and the accused to protect the accused’s right to be considered innocent until proven guilty beyond a reasonable doubt. It is a noble calling.

The GOP media machine accuses Col. John Mark Young of a being a trial lawyer as well. Our constitution and laws provide the right to a civil trial to redress wrongs. Without that provision you have no civil rights. The trial lawyer is in fact the protector of the life, liberty and property of the citizens. It is a noble calling.

Strangely, I know nothing about Col. Young’s opponent Brian Bingman. Bingman may be the best man for the seat. But, I don’t know that because the GOP has decided to spend its media dollars propagating ridiculous accusations against a good man instead of educating us about their own candidate. And that bothers me. The very fact that they have “gone negative” indicates that they have something to fear from Col. Young. Their fears are well founded. The GOP has done a terrible job with the social conservative’s agenda and frankly, moderate Democrats like Col. Young could go a long way if they can learn how to play the hard left wing of their own party off against the socially conservative views of their constituencies to produce real progress on issues like abortion, pornography, public school indoctrination and illegal immigration.

Granted, I have heard some people say that the Creek County race might tip control of the state senate back to the Democrats. I wouldn’t be happy with that but I am also very unhappy with the GOP ad campaign. It is an insult to the voter’s intelligence and if I could vote in that race, I might vote for Young just to spite the idiots who tried to sell me that load of garbage.

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Thursday, November 02, 2006

Federal Judge Grants Restraining Order Blocking Hazleton Ordinance

From The Hazleton Standard-Speaker

Tuesday, 31 October 2006
Federal Judge James Munley issued a temporary restraining order blocking Hazleton from enforcing both the Illegal Immigration Relief Act and the Landlords Tenant Registration Act Tuesday evening.
Opponents of both ordinances asked for an injunction Tuesday, a day before the city prepared to begin registering renters. They got a restraining order, which is similar to an injunction, except that it’s temporary.
The hearing on the request was held at 2 p.m., but Munley did not rule from the bench. Instead, he issued an order about five hours later. In his 13-page opinion, Munley ruled that landlords, tenants and businesses who cater to Hispanics faced “irreparable harm” from the ordinances.
“We find it in the public interest to protect residents’ access to homes, education, jobs and businesses,” Munley wrote.
He added the city “offers only vague generalizations about the crime allegedly caused by illegal immigrants, but has nothing concrete to back up these claims,” and that the plaintiffs have a “reasonable probability” of getting the laws declared unconstitutional.
The restraining order expires on Nov. 14. While he hasn’t scheduled a hearing on the opponents’ request for a temporary injunction – which would bar the city from enforcing either ordinance until the crux of the case is decided – he indicated he’d schedule one before the order expires.
The action means neither tenants nor landlords have to register with the city, for now.
The injunction followed by one day a lawsuit that claims the immigration act is unconstitutional.
Private attorneys, the Puerto Rican Legal Defense and Education Fund, the American Civil Liberties Union filed the lawsuit on Monday.
Witold J. Walczak, legal director of the ACLU of Pennsylvania, called Munley’s order an important victory.
“I think what’s important is the judge recognized that this ordinance has the potential to cause real harm by costing people their jobs, their houses and requiring children to leave schools,” Walczak said.
The city’s case was argued by city Solicitor Chris Slusser and attorney Andrew Adair, from Deasey, Mahoney and Bender, a Philadelphia law firm appointed by the city’s errors and omissions insurance carrier.
“I’m not discouraged,” Mayor Lou Barletta said after the hearing. “They may have delayed the enforcement for now, but this too shall pass. We’ve only begun to fight.”
Barletta said he thought Tuesday’s order was the “first step” in the process that will see the challenge work its way to the Third Circuit Court of Appeals in Philadelphia and eventually the U.S. Supreme Court.
Prior to the injunction, municipal workers set up an office on the third floor of City Hall from which they planned to issue occupancy permits required under the landlord tenant act.
To obtain a permit, renters were to pay $10 and submit identification such as a U.S. Passport or birth certificate to prove that they are United States citizens. Non-citizens were to show resident cards proving that they are in the country legally.
Former Hazleton Fire Chief T.J. Powell emerged from retirement to staff the office from 9 a.m. to 1 p.m. weekdays.
According to a schedule proposed before the injunction began, residents had to obtain permits depending on where they live. The city planned to begin enforcing the landlord tenant ordinance in phases.
The plan gave tenants living south of Broad Street until Dec. 1 to obtain a permit.
Residents of the streets northwest of Diamond Avenue between Wyoming and Boundary streets had until Jan. 1, 2007.
The deadlines were Feb. 1, 2007, for residents of streets northeast of Diamond Avenue between Wyoming and Thompson streets and March 1 for residents living between Broad Street and Diamond Avenue.
If residents move to a new rental dwelling, they are to obtain a new permit.
Landlords who rent to tenants without occupancy permits may be fined $1,000 plus $100 a day through the landlord tenant act.
The Illegal Immigration Relief Act says landlords can lose their rental licenses if they rent to an illegal immigrant, and they face fines of $250 for a second offense.
For businesses that employ illegal residents, the immigration act imposes penalties, too.
The company can lose its license as long as illegal immigrants remain on the payroll. For a second offense, the company loses its license for 20 days and faces lawsuits from legal workers who lose wages during shutdowns.
Hazleton’s Code Office is preparing to mail applications for renewing business licenses to firms this month. In addition to the applications, the envelopes will contain affidavits that businesses will sign to indicate that they will follow the immigration act.
While the city hadn’t begun enforcement yet, the immigration act already has had effects since its introduction this summer. City Council adopted an act in August, which drew a challenge from the Civil Liberties Union and other opponents. Council amended the act in September, and the opponents amended their court challenge this week.
Across the country, municipalities have discussed emulating Hazleton’s act, which is based on a proposal from San Bernardino, Calif.
Barletta, who has spoken to a U.S. Senate panel and done interviews with national media, said the act motivated illegal residents to leave Hazleton.
Marisol Velez, an Hispanic-American who lived in Hazleton for 15 years, said the act caused tension between ethnic groups.
At a car wash for a church youth group the Velez leads, three whites insulted the car-washers by saying things such as “I’ll donate to your fund when you learn English,” or “This is America. Go back to your country.”
“It is disgusting that these people turned against my youth who are leading Christian lives and are active parts of this community,” Velez wrote in a letter to the Standard-Speaker.
The reception was positive, however, when the young people dressed in Halloween costumes and went to St. Luke Manor last weekend to spend time with residents.
“The residents did not ask them what was their race or if they were legal citizens. We laughed. We played bingo, and enjoyed each other’s company as if we were family,” Velez wrote.