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Who's More Ethical: the Lawyer With the Client Who Lied or the Lawyer Who Withheld Evidence of the Lie?
Mike Cernovich stimulates an interesting discussion in this post. Specifically, he asks, "When you are a defense counsel in a civil case who discovers that a plaintiffs' claim is fraudulent, do you have a duty to disclose this to the trial court?" Cernovich's question arises out of this article,
Citing Fraud, Judge Tosses Case After Video Shows 'Paralyzed' Woman Walking at Law.com (4/26/07),
which reports on a case where lawyers defending a medical malpractice case obtained video evidence that a woman claiming to have been paralyzed through a doctor's negligence could walk. The defense attorneys obtained the tape in April 2005 but didn't disclose it until January 2007, when they moved to dismiss the case for fraud. The plaintiffs lawyers opposed the motion, but also complained that if the defendants had shown the video earlier, they wouldn't have invested 21 months worth of litigation time, cost, doctors fees and judicial resources. In response, defendants claim that they wanted to gather additional evidence to ensure that they would prevail on a motion to dismiss based on fraud.
Cernovich sees nothing wrong with the defendants' strategy. He writes:
So long as the defense lawyers disclosed their finding to the client (thus allowing the client to make to decision whether to incur further legal fees defending the action), I think they made the right choice. By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away.
In my view, neither attorney acted particularly well, at least based on the information provided in the report. I'm not sure how plaintiffs could have spent 21 months on a case and not realized that their client was not really paralyzed. Didn't they review her doctors' reports or medical records? Didn't they speak with caregivers and other witnesses, at least some of whom would have observed her walking around?
At the same time, the defendants didn't act much more honorably. Forcing opposing lawyers to invest time and money on a case involving a client who wasn't injured as badly as she claimed just to gain a strategic advantage is irresponsible. Had the defense lawyers notified opposing counsel about the clients' fraud, the lawyers might have discharged the client themselves. The parties may have agreed to a voluntary dismissal. Or they might have arrived at a lowball settlement that would have cost the defendants less than having their firm defend a case for 21 months, when they intended to dismiss it anyway.
The comment section is open, so please share your thoughts.
Posted by Carolyn Elefant on April 26, 2007 at 04:18 PM | Permalink
| Comments (9)
Comments
In the first place, why didn't plaintiff's lawyer have a general discovery demand for all evidence coming into the possession of defendant?
If there was such a request and we assume that plaintiff's lawyer had been lied to by plaintiff and her doctor (and, of course, one may sarcastically observe, that never happens), then defendant would have had to produce the damaging evidence. If defendant knowingly withheld that video despite the request, defendant's counsel would have acted unethically, be subject to sanction and the evidence surpresed.
If, on the other hand, plaintiff's counsel knew his client was lying and advanced that lie, he should be disbarred.
Except for the above ruminations, in our adversary system, an opposing counsel has no obligation to produce evidence not requested. An opposing counsel is also under no duty to teach his adversary the law, how to practice or argue against his client's case. Indeed, to do so would be unethical.
Posted by: Philip Furgang | Apr 26, 2007 5:03:31 PM
IMHO: pursuant to the court's duty to protect the public's interest, no settlement under such circumstances should be permitted to stand as to the final word in that matter. Whereas a defendant's attorney has an ethical duty to provide his client with a vigorous defense to ensure a fair trial, regardless of whether the client is actually innocent or guilty of the charges, the practice of so many defense attorneys to accept whatever their client states on it's face in order to provide themselves with a plausible deniability defense in regards to the attorney's own conduct more often than not leads to a drain on the resources of our judicial system, compounds the harm caused by the initial offense(s), and substitutes a judgment on the merits of the case and evidence presisented along with an order for appropriate relief as defined by the jurors and community at large, for a settlement that almost always provides greater benefit to the defendant than the victim. The same holds true where it is the Plaintiff's counsel who has chosen to be blissfully ignorant and the defendant is in fact the victim. Unfortunately, this is unlikely to change as long as there are those attorneys who are willing to choose the "low road" just because they "can" and derive substantial benefit from for themselves, and as long as the courts, prosecutors, and the bar are willing to look the other way because their plates are already too full with the "really" egregious offenders.
(Disclosure: I am NOT an attorney, which I imagine is obvious. I have also been a victim of such tactics once as an innocent defendant and once as an innocent plaintiff (which litigation is currently ongoing, hense my use of an alias,as unlike my adversary, I believe in "fair play")
Posted by: Donna Quixote | Apr 26, 2007 9:30:05 PM
Floridians, at least those in southern Florida, should know that there is, in fact, a country that fills in that blank space that appears above the northern border of the continental US on many US TV weather-maps; a country which does more than just send the US aggravating game-show hosts, bad comics, and Celine Dion; a country that helps to safeguard the continental US by keeping both polar bears and the Arctic Ocean away from North Dakota; a country which, remarkably, even has a legal system somewhat similar to that in the U.S with, even more remarkably, an “adversarial system”.
Why, we’re so advanced that we even, on occasion, invite speakers from both the DRI and the association that used to be known as ATLA.
It might not hurt if, occasionally, your judges and lawyers looked north on procedural and ethical issues of the type under discussion. It’s probable they’d find something some might consider relevant. This isn’t a constitutional issue so nobody should have to worry about offending some member of SCOTUS or a State superior court by referring to foreign law.
Cheers,
Posted by: David Cheifetz | Apr 27, 2007 12:49:41 AM
No attorney who has been in this position is likely to question defense counsel's tactics. Dishonest people rarely become honest even when confronted with their own Lazarus-like resurrection on a video screen. I have seen this fact pattern three times. Only twice did the case vanish after disclosure of the incriminating evidence. The third took her case to verdict and secured a (greatly diminished) award. Defense counsel's primary duty is to his/her client. Premature disclosure of the impeachment video -- which should be protected from discovery as work product if created at the direction of counsel in anticipation of litigation -- fails to fulfill that duty. I have sympathy for any attorney whose client engages in such a fraud. My sympathy in this case is tempered however by the suspicion that in the course of investing so heavily in the prosecution of the claim, plaintiff's counsel missed some pretty clear signs that his client was less disabled than advertised.
Posted by: Rob J | Apr 27, 2007 5:38:06 AM
There is one open question here: did the plaintiff's lawyer have a discovery request out there that this evidence should have been disclosed in response to? If so, the defense lawyer behaved badly. But if there was no discovery request aimed at this type of evidence, the defense lawyer acted appropriately. To suggest otherwise reflects a fundamental misunderstanding of advocacy in litigation. You don't play your cards until you believe the time is right. Sometimes that means you wait until the middle of trial. Sometimes that means you hit the other side over the head with it right out of the gate. That's litigation.
Posted by: Malpractice Lawyer | Apr 27, 2007 6:13:49 AM
To me this sums up everything that is wrong with legal practice. So much talk about ethics and duty and yet the bottom line is obvious - both sides are culpable of playing the game, because playing the game is what the Western adversarial system is all about. At the end of the day, the question properly posed should be: was the behaviour of either side immoral or amoral? Therafter, someone might ask: what prevented all involved - lawyers especially - from acting in accordance with a moral principle, however vague? The law isn't a game of poker, and it's not a game of deception. But these days its practitioners might as well be hustlers in a Vegas card room.
Posted by: Alex Wade | Apr 27, 2007 2:40:18 PM
What's the problem with the defendant's conduct? The video was probably privileged by what we call legal professional privilege in Australia. Perhaps it ought to have been discovered as a privileged document if there is a continuing disovery regime in the relevant jurisdiction, but I don't see why it should have been able to inspected. Sympathy for the presumably no-win no-fee attorney seems to underpin some of the comments. It is irrelevant. The plaintiff's attorney has rights against the plaintiff for fraudulent misrepresentation, and probably a fee agreement which provides for the fees to be payable in full in the circumstances of thi case. If the plaintiff is indigent, tough: many litigants cannot execute on judgments. Adversaries in litigation owe no duties other than to obey the rules and not to positively mislead the other, by word or by misrepresentation. The plaintiff was perpetrating a crime by bringing the case, and should hope she is not prosecuted for perjury.
Posted by: Lawyers' Lawyer | Apr 30, 2007 3:07:35 AM
I wish I were not so suspicious defense counsel kept litigating to run up their fees...
There is nowhere near enough information here to decide who did what to whom. IF defense counsel disclosed the video to the client and the client agreed to the defense strategy, then perhaps their behavior was ethical and moral. But we (in the US and elsewhere i am sure) are officers of the court. THAT duty is nowhere nore evident than in fraud. How odd no one else mentioned it.
I am pretty sure i'd have felt the need to disclose a fraud to the court. I belong to an American Inn of Court--I will see what my colleagues think.
Posted by: Carroll Straus | May 10, 2007 4:43:50 PM
How about a case where somebody apparantly fabricated evidence?
(read section 5.13) Yes, there was an order for discovery. Besides the apparant fabrication which was never reported by any counsel, certain material legitimate evidence was never produced and disappeared without explanation. This is not a personal injury case. This is a case involving a $40 billion dollar private equity firm which took control of a public company with the apparant help of Price Waterhouse Coopers as a Debtors professional (before the court reversed their retention and ordered fees disgorged) and KPMG on the creditors committee. What is it they say: "It's not the crime ... It's the coverup". Let's be honest, usually when lawyers at a powerful 50+ member firm tell lies, they don't have to face a real investigation into their misconduct, or should I say crimes.
Posted by: Dave O'Donnell | Jul 9, 2007 3:17:54 PM
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