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Tips From Bar Counsel: Client Lies: It's Their Problem, but it can Also Be Your Problem

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STATE BAR OF NEVADA
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Nevada Lawyer Magazine
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“...lately, the Office of Bar Counsel has received more calls from attorneys who have discovered or suspect that their clients have been deceiving them.”
Tips from Bar Counsel
Glenn Machado, Assistant Bar Counsel
CLIENT LIES: IT’S THEIR PROBLEM, BUT IT CAN ALSO BE YOUR PROBLEM
Maybe current economic conditions are to blame, but lately the Office of Bar Counsel has received more calls from attorneys who have discovered or suspect that their clients have been deceiving them. The dilemma may stem from possible fictitious or forged documents, upon which the attorney relied in court, or the concerns may arise after receiving evidence that clearly refutes the client’s representations. Sometimes the fraud has already been committed upon the court or another party; other times the attorney learns of the deceit beforehand. Two Rules of Professional Conduct (RPC) are frequently involved in such instances. First is RPC 1.6 (Confidentiality), which contains exceptions to attorney/client confidentiality when the client is using, or has used, the attorney’s services to commit a criminal or fraudulent act. RPC 1.6 (b) states that: A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary... (2) To prevent the client from committing a criminal or fraudulent act in furtherance of which the client has used or is using the lawyer’s services, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take suitable action; (3) To prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services have been or are being used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action; When the misrepresentation is made to the court, RPC 3.3 (Candor Toward the Tribunal) applies. RPC 3.3 states that (a) A lawyer shall not knowingly: (1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
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(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
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Nevada Lawyer February 2010
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The simpler scenario occurs when no fraud has If you know or suspect a client is attempting been committed upon the court. If the client denies to use your services to deceive a party or the court, wrongdoing, but the attorney does not believe the confront them. After such a meeting, if you conclude client, often the attorney can simply withdraw.1 If the that you can no longer trust your client, the best false information was presented to an opposing party, course of action is to withdraw if possible. If the the attorney has the option of revealing the confidence client has used your services to deceive the court, pursuant to the exceptions in RPC 1.6(b). However, in make sure you protect yourself and take appropriate such instances disclosure is discretionary, not mandatory, measures to mitigate the deception. pursuant to RPC 1.6. It’s no sin to believe your client, but it is a sin However, the attorney’s options are more restricted (and a disciplinary violation) to allow the client to use when the fraud is made to a tribunal and the matter your services to deceive others. remains pending. As indicated in RPC 3.3(c), the attorney’s duty to take remedial measures trumps the confidentiality requirements of RPC 1.6. Although the rule does not necessarily require the attorney to inform the tribunal, “reasonable remedial measures” must be taken. 1 RPC 1.2(d) states that a “lawyer shall not counsel a client to The key words in RPC 3.3 are “knowingly” and engage, or assist a client, in conduct that the lawyer knows “knows.” If the attorney has suspicions regarding a is criminal or fraudulent, but a lawyer may discuss the legal client’s testimony or evidence, but, after investigating consequences of any proposed course of conduct with a client the matter, cannot reasonably conclude that it’s false, the and may counsel or assist a client to make a good faith effort to rule is not triggered. According to the comments to the determine the validity, scope, meaning or application of the law.” ABA Model Rule 3.3(c) upon which Nevada’s rule is based, 2 Model Rule of Professional Conduct 3.3, Comment 8. “a lawyer should resolve doubts about the veracity of 3 Model Rule of Professional Conduct 3.3, Comment 13. testimony or other evidence in favor of the client, [but] the lawyer cannot ignore an obvious falsehood.”2 Of course, if the information or evidence ends up truly being false, you may have to convince the court, and perhaps a disciplinary panel, why your conclusion was not unreasonable. RPC 3.3(c) notes that the attorney’s obligations under the rule carry until the “conclusion of the ICHAEL RBAN proceeding.” Comments to the Model Rule 3.3(c) note that a “proceeding has concluded within the meaning of this Rule when a final judgment in the IS PLEASED TO ANNOUNCE THE OPENING proceeding has been affirmed on appeal or the time for review has passed.”3 So, if the matter is pending, sitting on appeal, or even open to appeal, the duty HE URBAN LAW FIRM remains attached. Sometimes, the concerned attorney calling our 4270 S. Decatur Blvd., Suite A-9 office needs a few days or a short amount of time Las Vegas, Nevada 89103 in order to verify information before submitting an Telephone: (702) 968-8087 4270 S.Facsimile: (702) 968-8088 A-9 Decatur Blvd., Suite order, distributing funds or deciding to present a Laswww.theurbanlawfirm.com Vegas, Nevada 89103 witness. And sometimes the client is adamant that the attorney take immediate action, especially when Telephone: (702) 968-8087 the action in question finalizes the matter. Mr. Urban was a former partner of Laquer, Urban, Clifford & Hodge LLP Facsimile: (702) 968-8088 When we receive such calls, we usually www.theurbanlawfirm.com recommend that the attorney take the necessary time and confront the client. Such clients, when confronted with being dishonest, either Mr. Urban was a former partner of Laquer, Urban, Clifford & Hodge LLP quickly understand the behavior is ultimately counterproductive and unacceptable, or they try to pressure the attorney to finalize the matter while they are still ahead. Sometimes these clients threaten or submit bar complaints as a pressuring tactic. We would respectfully note that it’s easier to defend a bar grievance stemming from you stepping back to verify the veracity of your evidence than one where a court has already sanctioned you for violating Rule 11 or otherwise making misrepresentations to the court.
MICHAEL A. URBAN A. U IS PLEASED TO ANNOUNCE THE M
MICHAEL A. URBA
THE URBAN LAW F THE URBAN LAW FIRM THE URBAN LAW FIRM
February 2010 Nevada Lawyer
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