Are you an honest negotiator?

A few weeks ago, Andrew Manitsky and I presented a CLE at the Young Lawyers Division meeting in Montreal.  We used both hypotheticals and real-life scenarios to explore the contours of the duty of candor. Including all phases of the litigation process — pre-suit negotiations, depositions, mediations, and court appearances — we touched on puffery, paltering, and misrepresentation by omission/silence.  One of our goals was to challenge attendees to consider how they’d react if in the shoes of our imaginary and actual lawyers.

Turns out, we were on to something.

Yesterday, the ABA Journal published Are you completely honest in negotiations? “Game frame’ lawyers are less likely to correct misimpressions, new study saysHere’s the opening sentence:

  • “Lawyers who see negotiation as a game to win are less likely to be completely honest with opposing counsel, according to a new study published in the Negotiation Journal.”

Researchers at Carnegie Mellon University, the Naval Postgraduate School, and Duquesne University conducted the study.  According to this press release,

  • “The study found that the more lawyers viewed negotiation through a game frame—that is, as an adversarial context with arbitrary and artificial rules—the less willing they were to honestly disclose information to correct misimpressions by opposing counsel. Lawyers with higher levels of moral character were less likely to apply a game frame to their decisions and were more willing to negotiate honestly.”

The study interests me.

For one, after outlining the relevant rules, the researchers stated:

  • “The acknowledgment of the importance of lawyers’ moral judgment in the rules governing lawyers’ conduct may come as a surprise. Contrary to popular perception, lawyers need not put aside their own moral values in blind pursuit of a client’s goals. Rather, they are tasked with striking what at times can be a difficult balance between client advocacy and honesty. This point is made explicitly in the Preamble to The Rules of Professional Conduct: ‘As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.’”

Against the backdrop of negotiation, mediation, and Rules 4.1 and 8.4(c), the notion that lawyers “are tasked with what at times can be a difficult balance between client advocacy and honesty” is exactly what Andrew and I tried to convey in Montreal.

For another, the study included scenarios strikingly similar to those that we used in our seminar. I’ve included the scenarios below the picture.  With that, and to avoid the body of this post becoming TL/DR, I’ll end here, leaving it to you whether to explore the scenarios.

As always, be careful out there.

Pinocchio

Scenarios:

 For the questions, participants were asked to respond:

  1. Extremely Unlikely
  2. Unlikely
  3. About 50% Likely
  4. Likely
  5. Extremely Likely

Full results and charts can be viewed here. They’re very difficult for me to decipher.  So, I’m going to cut and paste responses as reported by the ABA Journal.

 Scenario 1

 You represent plaintiff.  During settlement negotiations, opposing counsel’s comments make clear that they think your client can no longer work.  In fact, your client is able to work, and you have never claimed that your client is not able to work.

  • How likely are you to continue the negotiation without correcting the misimpression?
  • How likely are you to take direction solely from your client about whether to correct opposing counsel’s misimpression?
  • How likely are you to advise your client of your intent to disclose that plaintiff can work to opposing counsel and withdraw representation if your client refuses?
  • How likely are you to disclose plaintiff can work to opposing counsel and document the disclosure without asking your client first?

As reported by the ABA Journal:

 “56.3% of the lawyers said they were unlikely or extremely unlikely to correct the misimpression, while 24.4% said they were likely or extremely likely to do so.”

Scenario 2

 You represent client.  Client was an at-will employee fired from a large corporation without explanation. You are negotiating severance pay, a noncompete clause and other issues. You negotiated a resolution that included client’s agreement not to work for a list of companies for two years.  When the opposing counsel presents the settlement document, it omits one of the companies on the noncompete list.

  • How likely are you to continue to signatures without informing opposing counsel of the omission?
  • How likely are you to take direction solely from your client about whether to inform opposing counsel of the omission?
  • How likely are you to advise your client of your intent to inform opposing counsel of the omission and withdraw representation if your client refuses?
  • How likely are you to inform opposing counsel of the omission without first asking your client?

As reported by the ABA Journal:

  • “72.9% of the lawyers said they were unlikely or extremely unlikely to correct the omission, while 14% said they were likely or extremely likely to do so.”

Scenario 3

 You represent client in a disability claim.  During mediation, the mediator informs you that the defendant has proof that your client is not disabled.  The mediator has seen the video and tells you that it shows your client working around the house and yard.  In a private discussion, client informs you that client has an identical twin who often visits client home to help with physical chores—including landscaping, roof repair, car mechanics and moving furniture.

  • How likely are you to keep the existence of the twin brother hidden from both the mediator and the opposition team, and go to trial with the plan to turn the “smoking gun” evidence of the defense into a dramatic “gotcha” moment in court?
  • How likely are you to keep the existence of the twin brother hidden from both the mediator and the opposition team, but ask the mediator to determine if the defense will meet a specific demand amount if your client is able to discredit the defense’s video?
  • How likely are you to disclose information about the twin brother and his work on the house to the mediator and allow the mediator discretion about whether to disclose this information to the opposition team?

As reported by the ABA Journal:

  •  81.7% of lawyers said they were unlikely or extremely unlikely to wait for a “gotcha” trial moment, while 5.6% said they were likely or extremely likely to do so.
  • 8% of the lawyers said they were unlikely or extremely unlikely to ask the mediator whether the defense would meet a specific demand amount if they can discredit the video, while 30.8% said they were likely or extremely likely to do so.
  • 1% of the lawyers said they were unlikely or extremely unlikely to inform the mediator about the twin brother to disclose to the defense at the mediator’s discretion, while 44.6% said they were likely or extremely likely to do so.
  • 2% of the lawyers said they were unlikely or extremely unlikely to disclose the twin brother directly to the opposition team, while 42.1% said they were likely or extremely likely to do so.

Indiana, Montreal, and Vermont’s legal ethics rules on honesty.

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:

Lawyer is suspended for deposition threat to expose intimate photos of woman in court record

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 [1] 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 [2] 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 [2] 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 [1]: “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:

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.

West Virginia disciplinary opinion serves as a reminder of the importance of a lawyer’s duty of candor to a tribunal.

In 2020, I ran a NCAA tournament-style pool in which participants selected “winners” from 64 topics associated with legal ethics and professional responsibility.  As with the real tournament, I broke mine into four “regions.”  They were:

The final four was:

  • Former Client Conflicts
  • Candor to the Tribunal
  • Who decides? Lawyer or client?
  • Did you say “yutes?”

In the end, “Candor to the Tribunal” defeated “Did you say ‘yutes’” in the championship.

(Aside: yes Kathleen, Rule 3.3 is the Kansas Jayhawks of the Vermont bar.)

Anyhow, the result makes sense.  Arguably, there’s no rule that’s more important. Depending on the circumstances, the rule trumps duties owed to the client, and, in some situations, requires disclosure of confidences even though disclosure will result in “grave consequences to the client.”  See, Rule 3.3 – Candor Toward the Tribunal, Cmt.[11].

Today’s post highlights just how grave the consequences can for a lawyer who violates the duty of candor to a tribunal.

sanctions

First, some background.

Ethics inquiries come from across the spectrum of lawyers and practice areas.  In my experience, lawyers from any given practice area are convinced that theirs is more likely than others to foist its practitioners onto the horns of ethics dilemmas. Indeed, each practice area has its own pressure points. That said, from the inquiries I’ve received over the years, no lawyer will encounter as many daily dilemmas as the criminal defense attorney.  Navigating the tension duties to clients, courts, and non-clients is a task during which rocky shoals constantly lurk just below the surface.

Which brings me to today’s case.

As the Legal Profession Blog reported Saturday, the West Virginia Supreme Court recently ordered the suspension of a public defender’s law license.  The incident that resulted in the suspension presents a relatively common scenario: whether at arraignment or some other point in the criminal process, how much can a defense lawyer rely on statements made by the client or the client’s family?

According to the opinion, the lawyer appeared at a sentencing hearing that followed a client’s guilty plea.  The lawyer asked the sentencing court to impose probation so that the client could receive treatment at a health facility.  When asked whether “a guaranteed bed” was reserved for the client, the lawyer replied “Yes, it is, your Honor.”  So, the court imposed a suspended sentence and ordered probation that included a stay at the health facility.

Very shortly after the hearing,  a probation officer learned that the facility had not guaranteed a bed for the client. The probation officer notified the court.  In turn, the court revoked probation, imposed a “to serve” sentence, and ordered the lawyer to appear at a hearing to show cause why the lawyer should not be held in criminal contempt of court.

At the show cause hearing, the State’s evidence established that the facility had not guaranteed a bed prior to sentencing.  Then, the lawyer testified that, just before sentencing, the client informed the lawyer that the client’s mother had arranged for treatment.  The lawyer called the facility and was told that the client was eligible for admission.

The court was unmoved.  It held the lawyer in criminal contempt, concluding that the lawyer engaged in intentional dishonesty by stating that there was “a guaranteed bed” awaiting the client.  The court imposed various sanctions and referred the matter to disciplinary authorities.

The disciplinary office charged the lawyer with violating three Rules of Professional Conduct.  The rules

  • requiring candor to a tribunal;
  • prohibiting certain type of criminal conduct; and,
  • prohibiting conduct prejudicial to the administration of justice.

The lawyer stipulated to the facts underlying the charges and agreed to a one-year suspension, all stayed but for 90 days.

A hearing panel (the disciplinary version of a trial court) agreed with the violations, but reduced the sanction to one-year suspension, all stayed but 30 days.  Disciplinary authorities appealed.

On appeal, the WV Supreme Court reimposed the 90-day “to serve” portion of the suspension.  A majority agreed with the disciplinary office’s argument that doing so was “proper in light of the severity of [the lawyer’s] offense and is consistent with other lawyer disciplinary cases involving dishonesty.” Two justices dissented, with one arguing that the hearing panel’s decision to suspend the lawyer’s license for 30 days was “sensible” and that there was “no useful purpose in continuing to pillory” the lawyer with a 90-day suspension.

I don’t have a position on the West Virginia matter.  Rather, I post this as reminder that, no matter the practice area, there’s risk in relying on nothing but a client’s word.  Especially when the client’s representation can be confirmed (or not) by a phone call or email.  Indeed, Comment [3] to V.R.Pr.C. 3.3 falls under the hearing “Representations by a Lawyer” and begins with these two sentences:

  • “An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.”

Now, many of you might be thinking “the lawyer should’ve responded ‘my client informs me that there’s a guaranteed bed.’”  Maybe.  And maybe that would’ve resulted in the lawyer in avoiding a criminal contempt finding.

But think back to my point about criminal defense attorneys and rocky shoals.  Then, consider this: if the lawyer had floated treatment and responded, “my client informs me there’s a bed,” how turbulent would the sentencing waters have become for the client once the court learned that, in fact, the client had not been guaranteed a bed?

As always, be careful out there.

Surreptitious recordings (still) make my Spidey-sense tingle.

I’ve struggled to find inspiration to blog. So, today, I’m going to re-post a blog that originally appeared last May.  I’ve edited it slightly, moving several paragraphs to an end note.

The topic: whether a lawyer may ethically record conversations without disclosing the fact of the recording to the other person or people in the conversation.  Since the original post, I’ve received two inquiries on the topic. One involved a lawyer who was convinced that a client would soon make a frivolous disciplinary complaint, the other a lawyer who was dealing with an unrepresented opposing litigant who the lawyer felt had been less than honest with a court.

Last week, I was part of a panel that presented at the mid-year meeting of the National Organization of Bar Counsel.  Our panel used hypotheticals to frame discussion of issues on which jurisdictions take varying approaches.  Given that some states are “one-party consent” states and others “two,” this is one of those issues.  Nevertheless, in preparing for the seminar, my fellow panelists agreed that, even in one-party consent states, lawyers should think long and hard about surreptitiously recording conversations.  Which was the exact point I hoped to make in the original post, a post in which I stated that inquiries involving the word “surreptitious” make my Spidey-sense tingle.

spidey sense

I hope to return to original programming soon.  For now, here’s the reformatted version of the post that ran on May 20, 2021.

*****

A few months ago, a lawyer called to discuss the ethics issues associated with surreptitiously recording a conversation with a client.  More recently, another lawyer contacted me to ask about recording conversations with opposing counsel.

In my time here – 23 years – we’ve not received a single complaint in which a current or former client alleged that their lawyer secretly recorded them.  Nor have we received such a complaint from one lawyer against another. Of course, it’s difficult to complain about something you don’t know.  As such, I don’t necessarily consider the absence of evidence to be evidence of absence. For all I know, it happens, but the lawyer never uses the recording or alerts the client or other lawyer to its existence.[i]

Many state and local bar associations have issued advisory opinions on this issue.  Some have concluded that surreptitious recordings are inherently deceptive and unethical per se.  More have concluded that undisclosed recordings, standing alone, do not violate the rules.

The most prominent opinion might be ABA Formal Opinion 01-402. It’s an opinion in which the ABA’s Standing Committee on Ethics and Professional Responsibility advised that, in one-party consent jurisdictions, a lawyer does not violate the ethics rules merely by recording a conversation without informing the other participants.  Rather, it’s only unethical if the lawyer does something else to violate the law or rules. The ABA Committee was “divided as to whether a lawyer may record a client-lawyer conversation without the knowledge of the client, but agree[d] that it is inadvisable to do so.”

In January 2021, the Supreme Court of Arizona’s Attorney Ethics Advisory Committee recommended that the court approve Ethics Opinion EO-20-0002.  It’s an opinion in which the Arizona Committee concluded:

  • “that it is not per se unethical or ‘inherently deceptive’ for an attorney in Arizona to record a telephone communication between the attorney and another individual without disclosing that the attorney is recording the communication, so long as the recording does not violate applicable federal or state law. The lawyer must still act consistent with all applicable Arizona Rules of Professional Conduct in making and using the recording, and an attorney’s undisclosed recording may still violate various Ethical Rules, depending on the facts of each case.”

Some members of the Arizona Committee dissented.  Here’s the crux of the dissent:

  • “Over the past 40 years, Arizona has imposed a general blanket prohibition against an attorney recording a conversation without disclosure based on the view that any such recording is inherently deceptive and in violation of ER 8.4(c). This blanket prohibition is subject to a number of exceptions that have been articulated in several ethics opinions. The bedrock for the blanket prohibition is the simple proposition that, although such recordings may be legal under Arizona law at the end of the day, lawyers need to hold themselves to a higher standard. Over those 40 years, this rule, along with its exceptions, has worked well. There has been no hue and cry for a change.” (citation omitted).

In the end, and as reported by Professor Bernabe and Ethics at Law, the Arizona Supreme Court did not approve or adopt the opinion.  Still, aspects of the opinion provide educational value.  In particular, four of the majority’s caveats to its broader conclusion.

First, echoing the Vermont case that I mentioned above (and that is now in Endnote 1), the majority noted that it would continue to be a violation for a lawyer who was recording a conversation to state they were not.

Second, with respect to recording clients, the opinion stated that it is:

  • “rare that a client’s interest would ever be served by lawyers making undisclosed recordings of conversations between lawyer and client, and therefore unlikely that undisclosed recording of a lawyer-client conversation would ever be appropriate.”

And that,

  • “Lawyers should also avoid undisclosed recordings of conversations with their own clients, due to the likelihood that such recordings, if later discovered, would undermine the trust and candor that are essential to the lawyer-client relationship.”

Third, with respect to opposing lawyers, the Arizona Committee cautioned that “[u]ndisclosed recordings may also have serious negative effects on what would otherwise be collegial working relationships with opposing counsel.”

Finally, while noting that Arizona is a one-party consent state, the Committee stated:

  • “Before choosing to make an undisclosed recording, the Committee strongly recommends that lawyers consider whether a disclosed recording would serve the same purpose, in order to avoid unnecessarily risking the potential pitfalls of undisclosed recording.”

I understand that technology has made it incredibly easy to record every encounter.  I also understand that we are more and more tempted to record conversations with people who we perceive to be difficult.   Still, I view my role as a risk manager of sorts.  And, in that role, my Spidey sense tingles when the conversation includes “clients,” “opposing counsel,” “secret,” and “surreptitious.”

As always, be careful out there.

[i] In the mid-2000s, two Vermont lawyers represented a client charged with murder.  Mid-trial, the lawyers learned that an incarcerated person claimed to have knowledge that someone other than their client had committed the crime.  The court granted a short recess for the lawyers to follow-up on the tip. The lawyers interviewed the incarcerated person.  The person asked if the lawyers were recording the conversation.  They were.  Yet, one answered “no” and the other remained silent.

I don’t recall how, but the incarcerated person found out that the conversation had been recorded. A disciplinary complaint followed.  Eventually, my office charged the lawyers with violating Rules 4.1 and 8.4(c) of the Vermont Rules of Professional Conduct.  The former prohibits a lawyer from knowingly making a false statement of material fact to a third person while acting on a client’s behalf.  The latter makes it professional misconduct to engage in conduct involving dishonesty, deceit, misrepresentation, or fraud.

To be clear, the charges were not based on the surreptitious recording itself.  Vermont is a one-party consent state.  The charges focused on the lawyers’ deceptive answer and affirmation-by-silence when asked if the conversation was being recorded.

A hearing panel determined that the lawyers had violated Rule 4.1, but not Rule 8.4(c).  Upon review, the Supreme Court affirmed, concluding that not every dishonest act violates Rule 8.4(c), only those acts that adversely reflect on the lawyer’s fitness to practice.  The Court held that while the lawyers had violated Rule 4.1 by falsely stating they were not recording the conversation, the circumstances were such — the mid-trial reception of a tip that might have exonerated their client — that the misrepresentation did not adversely reflect on the lawyers’ fitness to practice.  Neither the hearing panel nor the Court opined as to whether the lawyers violated the rules merely by recording the conversation without informing the incarcerated person.

Sanctions imposed for lawyer’s failure to cite to controlling & adverse authority.

I’ve worked in the Professional Responsibility Program a long time. I’ve screened, investigated, and prosecuted hundreds of disciplinary complaints and responded to thousands of ethics inquiries. I don’t recall a single complaint or inquiry involving Rule 3.3(a)(2) the Vermont Rules of Professional Conduct. Indeed, but for a random trivia question, I don’t think I’ve ever even mentioned the rule at a CLE or seminar.

The rule states:

  • “a lawyer shall not fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Yesterday, the ABA Journal posted Judge slams Davis Wright for failing to mention settled, adverse case law, orders $40K in sanctions In a nutshell, lawyers representing a hospital asked a court to issue an injunction to prevent medical workers from striking. Under settled law, the court did not have the jurisdiction to do so.  As such, the court issued this order in which it imposed sanctions after concluding that the lawyers knowingly failed to disclose controlling authority that was adverse to their client. 

I understand that the absence of evidence isn’t necessarily evidence of absence.  Still, given the numbers in the opening paragraph, failing to disclose controlling authority doesn’t appear to be a significant issue in Vermont.  Nevertheless, the story is instructive.

According to the opinion, when ordered to show cause as to why a sanction shouldn’t issue, the lawyers argued

  • “that although in hindsight they could have done more to alert the Court of binding, contrary precedent, their actions are not sanctionable because they were merely arguing for an ‘extension’ of existing caselaw and were unable to identify any case ‘on all fours’ with the underlying facts here.”

The next line:

  • “This explanation is meritless.”

It goes without saying that intentionally failing to disclose controlling authority is a problem.  As stated in Comment [4] to Rule 3.3: “legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.”  Further, as is clear from today’s story, it’s no excuse that, surely, the other side will cite to the authority that you failed to mention.[1]

But my practical takeaway is this: don’t slice it too thin when confronted with questions such as “is this case on point?” or “is it adverse to our position?” Better to face a challenge head on than, as happened here, to have a court write this about you:

  • “It is not credible to believe this was merely an inadvertent omission. Additionally, [the lawyer’s] post-hoc argument, where he pieces together bits from his earlier memo to argue he indirectly alerted the Court to the jurisdictional issues, is unconvincing.”

As always, be careful out there.

sanctions

[1] Surely you didn’t think I could let that sentence pass without thinking of this.

Tech Competence and . . . flipping the bird?

It’s been a while since I’ve posted.  I love easing my way back into blogging with quick hitters.  So, without further ado:

Tip #1.   During a remote hearing, whether angry at yourself, opposing counsel, the court, or a screen that’s blank, frozen, or otherwise not working properly, don’t “flip the bird” at your camera.

Tip #2.  If you forget Tip #1, be honest when the court asks you what it just saw.

Today’s post comes thanks to a tip from Catamount Law’s Samantha Lednicky.  Last week, Sam sent me this order issued by the Michigan Court of Appeals.  The ABA Journal and Detroit Free Press have coverage.

I leave further reading to curious minds.

Flip the Bird

Related Posts:

Preparing for a remote hearing? Maybe check your client’s screen name

Tech Competence & Cats

Tech Competence Posts:

Go here for all my posts categorized or tagged as “tech competence.”

When a client insists that a lawyer advance frivolous claims.

Last year, I ran the “Professional Responsibility Madness” challenge.  Modeled on the “March Madness” brackets associated with the NCAA basketball tournament, I seeded 64 concepts associated with professional responsibility & legal ethics into the bracket.  Round-by-round, lawyers voted.  The concepts (and their category) that advanced to the Final Four were:

  • Candor to the Tribunal (Duties to Others)
  • Former Client Conflicts: Substantially Related? (Conflicts & Confidences)
  • Who Decides? Lawyer or Client? (Duties to Clients)
  • Did you say “Utes?” (My Cousin Vinny)

I was surprised by the interest in “Who Decides? Lawyers or Client?”  Until then, it was an issue rarely raised in ethics inquiries.

Flash forward to 2021.

In the past month, two different lawyers have made inquiries that boiled down to the same question: “what do I when the client insists on presenting a claim that I think is frivolous?”

In short, my position is that the lawyer decides which facts and arguments will be advanced, and that the lawyer, not the client, decides which facts and arguments are frivolous.  Then, if the client insists that the lawyer present frivolous claims, the lawyer must move to withdraw. In responding to each inquiry, I cautioned the lawyers that there is a difference between a frivolous claim and one that has little chance of prevailing.[i]

My position derives from the following rules:

  • Rule 1.2(a), which leaves the objectives of the representation to the client and how those objectives are pursued to the lawyer’s discretion, in consultation with the client;
  • Rule 1.4(a)(5), which requires a lawyer to “consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law;”
  • Rule 3.1, which prohibits a lawyer from bringing a claim or asserting a position “unless there is a basis in law or fact for doing so that is not frivolous;”
  • various provisions of Rule 1.16, most notably Rule 1.16(a)(1), which requires a lawyer to withdraw when continued representation will result in a violation of the rules; and,
  • the general duties of fairness to the opposing party and candor to the court.

Doing some follow-up research, I came across Ethics Opinion 1214 from the New York State Bar Association. Issued January 11, 2021, the opinion answers a question from a lawyer assigned to represent a person who had filed a pro se petition to vacate a judgment of foreclosure.  Upon reviewing the filing, the lawyer concluded that the person lacked a non-frivolous basis in law or fact to vacate the judgement.  The opinion concludes as follows:

  1. The lawyer may not argue or advance frivolous arguments.
  2. If the person insists, the lawyer may move to withdraw pursuant to:
    1. New York’s Rule 1.16(c)(4). The rule permits withdrawal when a “client insists on taking action with which a lawyer has a fundamental disagreement;”[ii] or,
    2. any other rule mandating or permitting withdrawal.
  3. In moving to withdraw, the lawyer must not disclose confidential information.[iii]
  4. If a motion to withdraw is denied, the lawyer must continue to represent the client, but without presenting frivolous claims.

Here’s the key language on the final point.  Even when withdrawal is not allowed, the lawyer:

  • “may still not engage in ‘frivolous conduct’ at the direction or behest of the homeowner. A client has no right to instruct a lawyer to violate a Rules of Professional Conduct, and a lawyer has no right to follow an instruction that the lawyer violate a Rule. Thus, the inquirer must find a means to competently represent the homeowner without putting forth frivolous arguments.”

As always, be careful out there.

[i] I suppose this might be referred to as the “Dumb & Dumber Corollary.”

Dumb and Dumber

[ii] Vermont’s Rule 1.16(b)(4) includes the same language.

[iii] For more on this issue, see my post Stop Making Noise. It discusses the peril of “noisy withdrawal.”

Forging signatures? Bad idea.

I’m in a blogging slump.  Only two posts since June 22nd.  Perhaps writing about a lawyer who may someday end up in a Was That Wrong? column will help to break me out of my slump.

The story comes via the ABA Journal.  Click later.  For now, imagine this:

  • You’re a criminal defense lawyer.
  • In January, the court issues a Bond Order that requires your client to wear an Electric Home Monitoring (EHM) device.
  • On March 9, a modified Bond Order issues.  Your client no longer has to wear the EHM! The modified Bond Order includes signatures that purport to be yours, the prosecutor’s, and the judge’s.
  • On March 10, the court, sue sponte, holds a conference call to discuss concerns that the prosecutor has raised about the modified Bond Order.  Specifically, the prosecutor informed the court that she never agreed to modify the Bond Order and that the signature isn’t hers.
  • You reply by conceding that you signed the prosecutor’s name.

At this point, readers likely realize that things aren’t going too well for you.

Alas, you realize that things are about to get a whole lot worse.  Well, now, it’s time to share what you and I know with the readers.

Here’s language from the order that the court issued after the conference call:

  • “This Court also has concerns about what is purported to be its signature. The signature does not resemble this Court’s signature. The Court does not recall signing the Order. The date the Order was purportedly signed, March 4, 2020, the undersigned was not in the circuit and was unavailable to sign the Order.”

I think readers are starting to understand how bad things are getting for you.

  • “Defense Counsel . . . stated in the conference call that he presented the Order to the Court on Monday. The Court understood that [Defense Counsel] was referring to Monday March 2, 2020.  Out of an abundance of caution, this Court had the security tapes reviewed for Monday, March 2 and Monday, March 9, 2020.  [Defense Counsel] was not seen in court on either of those days.”

Drawing on my basketball experiences, coaches sometimes respond to a player’s mistake by saying “good idea, poor execution.” Yet, as with today’s story, there were also times when a player’s mistake was not only in the execution, but in the idea itself.  In that situation, a coach begins by asking “what were you thinking?”

Indeed.

The transcript of the conference call the final document available at this link.

Denver criminal defendants no longer must pay for ankle monitors

 

A lawyer’s duty upon learning that a client or witness presented false evidence.

Earlier this month I presented CLEs for both the Defender General’s Office and the VBA’s Bankruptcy Section.  At each, we discussed Rule 3.3 and a lawyer’s duty of candor to the tribunal.

A quick search of this site shows that I often include questions on the rule in the #fiveforfriday quiz.  Substantive posts, however, are exceedingly rare, limited, it seems, to this post on Rule 3.3(d) and the duty of candor in an ex parte proceeding.

While not often a topic I address, it’s a topic I hear about, whether by formal inquiry of bar counsel or by questions posed at CLEs.  The inquiries & questions boil down to this: “having learned that a client or witness lied, what do I do?”

When I get the question at CLEs, I respond by asking the audience “what’s the first thing you have to do?”  Two answers are common:

  • “Withdraw.”
  • “Inform the court.”

In my view, neither is the right answer.

Let’s look at Rule 3.3(a)(3).  The section relevant to this post states that “a lawyer shall not knowingly:

  • offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” (emphasis added)

Stated differently, the rule does not say that

  • “If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall withdraw/inform the tribunal.”

So, what are “reasonable remedial measures?”  The comments provide guidance.  Specifically, Comments [10] and [11].

Here are a few key lines from Comment [10]:

  • “In such situations, an advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

The use of “remonstrate” is telling.  I’m not bright enough to know whether, in the comment, “remonstrate” is a transitive or intransitive verb.  No matter which, it’s clear that it means more than “chatting” with the client.

Per Merriam-Webster, as an intranstive verb it means “to present and urge reasons in opposition.”  With an object receiving it – for instance, a client – it means “to say or plead in protest, reproof, or opposition.” To me, the duty, then, is to protest against the false evidence having been offered, present the client with reasons to correct it, and urge the client to do so.

The Comment goes on:

  • “If that fails, the advocate must take further remedial action.  If withdrawal from the representation is not permitted or will not undo the adverse effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by (the confidentiality rule).”

Harsh?  Yes.  The opening sentence to Comment [11] makes that clear:

  • “The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury.”

Why so harsh?  The next sentences provide the answer:

  • “But the alternative is that the lawyer cooperate in deceiving the court. thereby subverting the truth finding process which the adversary system is designed to implement . . . Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent.  Thus the client could in effect coerce the lawyer into being a party to fraud on the court.”

I don’t know how often this arises in practice.  For now, if it does, remember: upon learning that a client or witness has provided false evidence, neither “withdraw” nor “inform the court” is the first step.

Remonstrate, remonstrate, remonstrate.

Image result for remonstrate

 

 

Talking culture, compliance, confidences & candor.

Flashback to 1994:  I was a brand new attorney.  Another attorney in my office mentioned Shelley Hill.  I asked, “who’s Shelley Hill?”  The attorney responded, “someone you never want to hear from.”

Back then, Shelley was Vermont’s disciplinary prosecutor.  The attorney’s answer to my question was the extent of the ethics guidance I received in my first ever job as a lawyer.

Legal Ethics

We’ve come a long way.  It’s no longer taboo to talk legal ethics.  We talk it.  A lot.  Not only does it help us do better for our clients, it improves the image of the profession.  To that end, one of my goals as bar counsel is to foster an ongoing and open dialogue about legal ethics and professional responsibility that helps to build a culture of compliance that we put out there for the world to see.

Reflective of the today’s world, the conversation happens in many forums.**  Today, I woke to having been mentioned in a tweet by a lawyer who was concerned by the news that Nikolas Cruz’s public defender disclosed Cruz’s potential inheritance in a motion to withdraw from representing him in the criminal case.  The lawyer tweeted:

“i would be interested to learn the circumstances of the public defender of Nikolas Cruz disclosing to the court in Mtn to Withdraw and on the record that his client inherited $430,000 (VERY vulnerable to civil suit if not exempt) – seems a bit problematic, eh @VTBarCounsel?”

The entire string is here.

Look at us.  We are talking legal ethics in public! THAT is professional responsibility.

I’ve blogged often on client confidences and Rule 1.6.  Basically, my position is that lawyers should STFU.  Or, to borrow a quote from Thomas Edison that my Dad instilled in me as a kid:

“You will have many opportunities
to keep your mouth shut.
You should take advantage
of everyone of them.”

Obviously, it’s far wiser to take my Dad out in public than his eldest son.

Anyhow, as indicated in my reply Tweet this morning, I don’t comment without hearing all sides to a story, not to mention that I have no idea what Florida’s rules are.  But it’s a great construct to use as a mini-refresher on Vermont’s rules.

By rule, “information relating to the representation of a client” is confidential.  The scope is broader than the privilege and includes all information related to the representation no matter the source.  Comment [3].  Such information shall not be disclosed unless:

  • the client gives informed consent to the disclosure;
  • disclosure is impliedly authorized to carry out the representation;
  • disclosure is required by paragraph (b);
  • disclosure is permitted by paragraph (c).

Returning to the Parkland case, if Vermont’s rules applied, the first possibility is that Cruz gave informed consent for his public defender to make the disclosure.

I’d be surprised if any of exceptions in paragraph (b) applied.  However, it’s possible that one of the exceptions in paragraph (c) applies.  That is, disclosure of the inheritance might be authorized by another rule.  Stay with me here.

This morning I did something rare: I did some research before I tweeted.  I learned that, as reported by the South Florida SunSentinel, a year ago Cruz’s inheritance was the subject of a hearing as to whether he qualified for public defender services.  Per the report, it appears as if it was represented to the court that Cruz stood to inherit far less than recent developments indicate.

If so, and again if Vermont’s rules applied, it’s possible that the new information required the public defender to make the disclosure pursuant to Rule 3.3.  The rule, entitled “Candor to a Tribunal,” requires a lawyer to correct a prior material statement of fact that was false.  Were the statements made in last year’s hearing on Cruz’s eligibility for public defender services “material” and “false?”  If so, one might argue that the public defender was required to make the disclosure in the motion to withdraw.

Finally, reading today’s reports left me with the impression that Cruz’s public defenders believe that, given the inheritance, the law precludes him from being eligible for their services.  Thus, it appears to me that they argued that they are required to withdraw.

In Vermont, Rule 1.16 governs withdrawal.  Perhaps most relevant here, Rule 1.16(a)(1) requires withdrawal when “the representation will result in violation of the rules of professional conduct or other law.”  So, it looks to me as if the argument is “by law, the inheritance prohibits us from representing him, thus withdrawal is required.”  The Florida courts will decide.

Aside: as some of you know from having called me or heard me speak.  When it comes to a motion to withdraw, I think it best to limit the motion to citing the text of whichever provision(s) of Rule 1.6 you’re arguing.  Then, if the court asks for more information, respond, but in such a way as to disclose no more information than is necessary to answer the court’s question.  Being mindful, the entire time, of a larger duty not to harm to your client’s interests on your way out.  Others may disagree with me, but that’s fine.

Indeed, that’s why it’s so important to continue to discuss legal ethics and professional responsibility.  The discussion makes us do better by our clients, the courts, and the profession.

Talk on.

** I couldn’t decide whether to go with “fora” or “forums.”  Flipped a coin.