Candor Toward the Tribunal

June 10, 2014 § Leave a comment

I am aware of two cases lately — neither in my court — in which lawyers filed pleadings with the court that were false and misleading, and then pursued those pleadings in an effort to reduce them to judgment.

In both cases, the lawyers knew that the facts stated (and sworn to by the clients) were false.

Rule of Professional Conduct (RPC) 3.3 states:

(a) A lawyer shall not knowingly:

(1)  make a false statement of material fact or law to a tribunal;

(2)  fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

*  *  *

(4)  offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

*  *  *

(c)  In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The comment to the rule makes it clear that the lawyer will be held responsible for pleadings filed with the court, although he is not required to have personal knowledge of their accuracy when filed. MRCP 11, which requires the attorney to sign every pleading filed, states that:

“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

The requirement is so serious that any pleading that does not comply may be stricken as sham, and the action may proceed as if it had never been filed. 

From the above, it should be obvious to even the greenest among us that there can be professional repercussions from playing fast and loose with this duty of candor.

Beyond the language of the rules, though, there is the lawyer’s relationship with the court to consider. Chancellors must rely on the honesty and good faith of lawyers who come before them in order to make correct decisions. When a lawyer stretches the truth, or conceals material facts, or presents information that is known to be untrue, that lawyer is inflicting grave injury on himself with the court. Once the judge has found an attorney to be untrustworthy, it may take years — if ever — for the lawyer to recover his lost standing with that judge. The penalties can include closer scrutiny, being required to prove and provide authority for even simple assertions, and skepticism toward the merit of that lawyer’s cases.

I have said before that your reputation with a judge is like a store of gold. If you spend it frugally and wisely, and only as truly needed, it will last you the length of your career. If you squander it, you may never gain it back.     

 

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