Truth or Consequences
By
Martin A. Cole, First Assistant Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (December
2003)
From time
to time, patterns emerge in the field of lawyer discipline. For example, in the late 1980s there was a
series of public discipline cases involving lawyers who came to be referred to
as “dishonest procrastinators.”Ftn 1 These cases involved attorneys who neglected
client files and then lied to their client and/or to courts to cover up their
conduct. In the late 1990s, a series of
misappropriation cases led to record numbers of disbarments, and to several
criminal convictions and incarcerations.
As then-Director Edward Cleary wrote, “It should come as no great
surprise to those familiar with the professional discipline system that the
fastest way to lose your license to practice law is to misappropriate client
funds.”Ftn 2 It was also noted that a few disbarments
resulted from other acts of dishonesty such as forgery or fraud on the court.
Misappropriation
of client funds still occurs infrequently and still results in disbarment.Ftn 3 What is reemerging, however, is that “other
acts of dishonesty” category. Call it
what you will: false statements or
misrepresentations or lying; forging or falsifying or fabricating documents and
evidence. Sometimes it takes a few
years to truly see an evolving pattern, but we seem once again to be in the
midst of a growing pattern of lawyer discipline cases involving attorneys lying
to courts, opposing counsel and clients, or altering, forging or totally
fabricating documents and other evidence.
The
Minnesota Supreme Court declared 40 years ago that to be an attorney requires
“loyalty to the truth without which [one] cannot be a lawyer in the real sense
of the word.”Ftn 4 Today, however, too many lawyers seem to
have a serious disrespect for the truth, except when it is convenient. As a result, some of them are paying the
disciplinary consequences for their actions.
This trend may be a reflection of a more widespread willingness to lie
that exists in society as a whole, but it should be considered particularly
inappropriate for attorneys.
“Honesty is the Best Policy”
The Rules
of Professional Conduct do not just hope that lawyers will follow this old
maxim and do the right thing. In fact,
truth is sufficiently important that the Rules contain several requirements
that attorneys tell the truth. For
example, Rule 4.1, Minnesota Rules of Professional Conduct, states
unequivocally that “[i]n the course of representing a client a lawyer shall not
knowingly make a false statement of fact or law.” Can it get any clearer?
Furthermore, when Minnesota adopted the ABA’s Model Rule, it deleted the
requirement that a false statement of fact must be “material” in order to be a
violation of this rule.Ftn 5 All intentional false statements in the
course of representing clients are equally reprehensible in Minnesota.
Several
other rules require truth telling. Rule
3.3(a)(1) combines the basic prohibition above to a lawyer’s obligations as an
officer of the court by stating that an attorney shall not knowingly make a
false statement of fact to a tribunal.
The remainder of Rule 3.3 contains additional obligations of
candor. Rule 3.3(a)(2) states that a
lawyer shall not knowingly fail to disclose a fact to a tribunal when
disclosure is necessary to avoid assisting a client’s criminal or fraudulent
act. Rule 3.3(a)(4) prohibits knowingly
offering false evidence -- which prohibition should be obvious -- then also
deals with the lawyer’s duty when she discovers that she unknowingly has
offered false information to a tribunal.
These obligations contained in Rule 3.3(a) apply even if compliance
requires the attorney to reveal information otherwise protected as
confidential.
Portions
of certain other rules also contain requirements of truthfulness. Rule 3.3(d) prohibits the omission of
material information in ex parte proceedings, Rule 3.4(b) states
that a lawyer shall not falsify evidence, or counsel or assist a witness to
testify falsely, and Rule 8.4(c) generally prohibits dishonesty,
misrepresentations, and deceitful conduct in all aspects of an attorney’s
life. Even in lawyer advertising the
Rules recognize the importance of honesty.
Rule 7.1 prohibits a lawyer from making a false or misleading statement
about the lawyer or the lawyer’s services in any advertising or marketing instrument
or in any permitted direct solicitation.
The
Minnesota Supreme Court, in numerous lawyer disciplinary decisions, has
emphasized the importance of telling the truth as a fundamental character trait
for attorneys, stating: “Attorneys are,
first of all, officers of the court and owe it their highest duty. This duty imposes an obligation on all
attorneys to be truthful in their dealings with both opposing counsel and the
court.”Ftn 6 “Our legal system depends on the truthfulness
of the testimony of witnesses and false testimony strikes at the very heart of
the administration of justice.”Ftn 7 “’It is professional misconduct for a lawyer
to . . . engage in conduct involving dishonesty, fraud, deceit
or misrepresentation.’ We have
generally issued more serious discipline for misrepresentation.”Ftn 8
Recent Decisions
In the
past two years, several lawyers have been publicly disciplined for various acts
of “other dishonesty.” Misrepresentations
to clients and others resulted in disbarment for two lawyers when combined with
other serious misconduct or prior public discipline.Ftn 9
Two dishonest procrastinators were publicly reprimanded and placed on
probation for lying to cover up their neglect.Ftn 10 Discipline was imposed on three attorneys for lying to a
court: misrepresentations to the
bankruptcy court concerning the lawyer’s fee arrangements with his clients
resulted in a six-month suspension;Ftn 11
giving false testimony under oath as a witness also warranted a six-month
suspension;Ftn 12
and lying to the court in the lawyer’s own dissolution and custody matter
warranted a 30-day suspension.Ftn 13 Two lawyers were suspended for altering
documents: one signed and notarized his
client’s signature on an affidavit, resulting in a stayed 30-day suspension;Ftn 14 the other
forged the client’s initials to changes made by the lawyer to a fee agreement
and waiver of homestead lien document.
Since it was the second incident involving this particular lawyer
altering a homestead waiver, the total period of suspension for the two matters
combined was 27 months.Ftn 15
There are
several cases “in the pipeline” that may result in public discipline by the end
of this year or early in 2004. These
involve matters such as failing to disclose material information to the court in
an ex parte proceeding and photocopying a client’s signature to create a
false fee agreement. It is exceedingly
rare that dishonest conduct results in a private disciplinary decision.
There are
programs that assist the disciplinary system in uncovering lawyers who misuse
their trust accounts. For example,
overdrafts on lawyer trust accounts are reported to the Director’s Office for
possible investigation.Ftn 16 False statements and forged documents can be
harder to detect, however. There is no
magic alarm that goes off when a lawyer knowingly lies to a client, opposing
party or judge, although there should be one that goes off inside the head of
the offending lawyer. Vigilance,
especially by the courts, to challenge and report incidents of attorneys
knowingly making false statements is useful for discipline and deterrence, but
ultimately it’s a matter of character.
Unlike
lawyers who misappropriate client funds, many of the lawyers who commit these
acts of “other dishonesty” are allowed to continue or eventually are reinstated
to the practice of law. Most of the
ones who are reinstated never repeat their previous misconduct and successfully
establish that their dishonesty was a one-time act that was completely out of
character. Some use the lesson learned
to alter their practices and their lives permanently for the better. For those who repeat their dishonesty,
however, the discipline the second time around usually has been more severe.Ftn 17
Conclusion
The daily
news reveals some shocking examples of individuals, including individuals of
prominence, who have been willing to lie, cheat and steal their way to success,
or who try to lie or obfuscate their way out of trouble once confronted. No doubt many acts of lying or falsifying go
undetected, and too often such acts may appear to result in some short-term
benefit for the person willing to engage in such conduct.
The Rules
of Professional Conduct prohibit lying and falsifying evidence. Lawyers willing to lie or falsify on behalf
of a client or themselves may succeed in the short run and have to deal only
with their conscience, but if detected, they should know that they will face
serious disciplinary consequences.
NOTES
1 William Wernz, “The Dishonest Procrastinator,” Bench & Bar of Minnesota (January 1990), p. 15.
4 In re Nilva, 266 Minn. 576, 123 N.W.2d 803, 809 (1963).
6 In re Ruhland, 442 N.W.2d 783, 786 (Minn. 1989).
7 In re Salmen, 484 N.W.2d 253, 254 (Minn. 1992).
8 In re Ganley, 549 N.W.2d 368, 370 (Minn. 1996).
9 In re Westby, 639 N.W.2d 358 (Minn. 2002); In re Samborski, 644 N.W.2d 402 (Minn. 2002).
10 In re Dufresne, 640 N.W.2d 337 (Minn. 2002); In re Johnson, 652 N.W.2d 703 (Minn. 2002).
11 In re Wentzell, 656 N.W.2d 402 (Minn. 2003).
12 In re Kopeska, 638 N.W.2d 196 (Minn. 2002).
13 In re Scott, 657 N.W.2d 567 (Minn. 2003).
14 In re Riggs, 664 N.W.2d 290 (Minn. 2003).
16 Rule 1.15(k) - (o), Minnesota Rules of Professional Conduct.