Earlier this week I used rather extreme misconduct to highlight the duty to safeguard client funds. I’m back at it, but with today’s example an opportunity to mention rules that I don’t often discuss anywhere but in the Friday quiz.
In February, the Indiana Supreme Court suspended a lawyer for 90 days after concluding that the lawyer violated two of the honesty rules while deposing an unrepresented opposing litigant.
Wait . . .
. . . having re-read the previous sentence, I can sense a collective yawn. So, let me try this.
Here’s the headline from the ABA Journal article that reported the Indiana opinion:
According to the opinion, the lawyer “represented a man against whom a woman had petitioned for a protective order.” The opinion goes on:
- “During a deposition of the unrepresented petitioner that was attended by a court reporter and others in Respondent’s firm, Respondent confronted the petitioner with several 8”x10” color copies of intimate photos she had sent the man during their relationship, prior to the events giving rise to the protective order petition, displaying them facing up on the table for all in attendance to see. Respondent asked the petitioner, ‘why do women who seek the aid of the court send these kinds of pictures to men?’ Respondent then asked her if she still intended to pursue a protective order or whether there would be a ‘better way’ to handle things than for her to be ‘drug through’ and ‘exposed in’ the court. When the petitioner responded she just wanted the man to stop harassing her, Respondent ended the deposition and told the petitioner ‘[t]he court reporter will transcribe this to final form, submit it to the court, it then becomes a public record. There’s a way to stop that, but otherwise with the matter still pending we’ll have to submit it to the court and attend a hearing, which will be a very public hearing as well.’ The petitioner then indicated she wanted to dismiss the case, Respondent instructed the court reporter to go off the record, and Respondent instructed the petitioner how to file for dismissal, which she did immediately after leaving the deposition. Respondent later bragged to an associate about having secured a dismissal by threatening to have the photographs become part of the record.”
But for the short suspension, this would’ve qualified for Was that Wrong?
Anyhow, the Indiana Court concluded that the lawyer’s conduct violated several provisions of the Indiana Rules of Professional Conduct, including Rules 4.1(a) and 8.4(c). Let’s review Vermont’s version of each.
In Vermont, V.R.Pr.C. 4.1 states that “in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person.” Aspects of the Comment are instructive.
Comment  reminds lawyers that they are “required to be truthful when dealing with others on a client’s behalf.” It goes on to state that a lawyer can violate the rule by incorporating or affirming another person’s statement that the lawyer knows to be false, as well as by making a misrepresentation by omission.
Next, Comment  sets out what I refer to as “the puffery exception.”
- “This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their obligations under applicable law to avoid criminal and tortious misrepresentation.”
As Comment  suggests, puffery most often arises in negotiation. I first blogged about puffery here, a post in which I noted that “I’ve often kidded, but only half-jokingly, that the Comment really means that it’s okay to lie to other lawyers.”
In any event, with respect to Rule 4.1, the takeaway from this post should be the first sentence of Comment : “a lawyer is required to be truthful when dealing with others on a client’s behalf.”
Next, Vermont’s 8.4(c) makes it ”professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” As stated above, the Indiana court concluded that the lawyer violated this rule as well.
Now, I can sense what some of you might be thinking: “Mike, of course the court concluded that the lawyer violated Rule 8.4(c). A violation of Rule 4.1 is necessarily a violation of Rule 8.4(c).”
In the words of the inimitable Lee Corso:
Many years ago, two Vermont lawyers were representing a client charged with murder. Mid-trial, a person claimed to have information that would exculpate the lawyers’ client. The court granted a short reprieve to interview the witness. The interview took place by telephone. The witness asked if the interview was being recorded. The lawyers knew that, in fact, they were recording the interview. Nevertheless, one answered “no” and the other remained silent. Eventually, a disciplinary complaint was filed, and the lawyers were charged with violating Rule 4.1 and Rule 8.4(c).
A hearing panel concluded that the lawyers had violated the former but not the latter. The panel determined that Rule 8.4(c) only applies “to conduct so egregious that it indicates that the lawyer charged lacks the moral character to practice law” and that given the circumstances, the lawyers’ conduct did not rise to that level.
On review, the Supreme Court affirmed. The Court stated that it was:
- “not prepared to believe that any dishonesty, such a giving a false reason to break a dinner engagement, would be actionable under the rule. Rather, Rule 8.4(c) prohibits ‘conduct involving dishonesty, fraud, deceit, or misrepresentation’ that reflects on an attorney’s fitness to practice law, whether that conduct occurs in an attorney’s personal or professional life.”
So, there you have it.
On a personal note, and as many of my friends & relatives will not be surprised to learn, I’m quite relieved that giving a false reason for not showing up for dinner or drinks isn’t actionable.
In closing, I’m not sure where this post was ever intended to go. So, I’ll leave with you this tantalizing morsel.
On April 29, Andrew Manitsky and I will present at the YLD Thaw in Montreal. We intend to discuss all aspects of the honesty rules, including just how far a lawyer can go without crossing the line. Not only will we mention “puffery,” but we’ll touch upon its cousin: “paltering.” Paltering is a condition that my French-Canadian mother is certain that my father’s Irish genes afflicted her sons: the active use of the truth to deceive.
Join us for a lively seminar!
In the meantime, when it comes to honesty, and as always, let’s be careful out there.