Sat. May 25th, 2024

Your client has just been sentenced as a first-time DWI offender earlier this morning. Later in the afternoon, you are in another courthouse. Your same client is facing sentencing for another DWI. The driver’s abstract has not yet been updated to reflect that, based on the morning’s plea, your client is no longer a first-time offender.  You validate the factual inaccuracy to the judge and prosecutor by commenting that the abstract was just run that day.  Technically this is true, but you know it is no longer accurate. You and your client are the only ones in the courtroom that know. You believe it is your job to make sure your client gets the most favorable sentence possible, and you don’t want to be deemed “ineffective.” It works. Your affirmation misleads the court into believing that your client has never been convicted of a DWI, and he is sentenced as a first-time DWI offender – for the second time that day. Are you just zealously advocating for your client by failing to disclose the first DWI, or do your actions violate the rules of ethics? A New Jersey lawyer found himself in this situation and was censured.

Actual knowledge creates duty to correct court’s misinformation 

The lawyer did not believe at the time of the hearing that he had a duty to inform the court or the prosecutor of his client’s DWI conviction earlier that morning based on State v. Kane, 2015 N.J. Super. Unpub. LEXIS 277 (App. Div. Feb. 17, 2015). In Kane, the Appellate Division rejected the argument that a defense attorney was unethical in failing to disclose a newly enacted statute that his client’s conduct violated, in addition to the driving offense for which he was entering his plea. The court found that it was the prosecutor’s responsibility to have been aware of the statute’s potential applicability.

New Jersey’s Disciplinary Review Board (“DRB”) found that Kane was inapplicable.  Kane dealt with constructive knowledge and legal facts, but this case addressed the lawyer’s actual knowledge and candor concerning material and operative facts. The duty of candor toward a tribunal created a duty to correct the court’s misundertsanding to avoid deceiving the court into imposing an improper sentence.

The DRB instead pointed to In re Seelig, 180 N.J. 234 (2004), where the Court found an attorney violated Rule 3.3(a)(5) by failing to reveal to the court that the person involved in his client’s automobile accident had died, hoping the court would accept his client’s plea to motor vehicle offenses and precluding the indictable changes based on double jeopardy. The DRB found that “The Court observed that RPC 3.3(a)(5) “compel[s] a lawyer to act affirmatively against his or her client’s interests even when the primary responsibility for informing the court does not (or may not) lie with the lawyer.” Seelig, 180 N.J. at 253. Moreover, RPC 3.3(a)(5) “impose[s] a duty to disclose in order to prevent errors in decision making by a tribunal that [. . .] has been misled because it lacks information about material facts.” Ibid.”

Misrepresentation is not a permissible litigation tactic

The DRB found that the lawyer’s breach of his duty of candor leading to the court’s improper sentencing and his dishonesty in responding to the court was conduct prejudicial to the administration of the justice system, violating Rules 8.4(c), 8.4(d), and 3.3(a)(5) of the Rules of Professional Conduct. The DRB further found that the lawyer failed to understand that “misrepresentation cannot serve as a permissible litigation tactic, even when carried out in the name of zealous advocacy.”

Zeal or no zeal?

Each jurisdiction has their own take on when ethical boundaries are crossed in the name of zealous representation. While ABA Model Rule 1.3, titled “Diligence,” itself imposes no duty of “zealous representation,” Comment [1] to ABA Model Rule 1.3 still, in part, provides that “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Some jurisdictions have started removing any requirement to act with zeal from their rules of professional conduct.  Ohio, for example,  removed the requirement to act “with zeal in advocacy upon the client’s behalf,” from its Comment [1], reasoning that “[z]ealous advocacy is often invoked as an excuse for unprofessional behavior.“ Likewise, New Jersey’s Rule 1.3 simply provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The word “zeal” does not appear. Conversely, Georgia’s Comment [1] still requires a lawyer to act with zeal in advocacy on the client’s behalf, although this would not suggest that Georgia lawyers may engage in conduct that is misleading to a tribunal.

Regardless of where your jurisdiction falls on the spectrum, always keep in mind that your desire to zealously represent your client should not come at the sake of violating your other ethical duties—particularly your duty of candor toward the tribunal.

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Lawyers’ Obligation of Candor to Opposing Parties and Third Parties

Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective November 1, 2018, provides more specific guidance to lawyers relative to this duty. Rules 1.2.1, 1.6, 3.4, 4.1, 4.2, 4.3,7.1 through 7.5, and 8.4 are all implicated in this duty, as well as Business & Professions Code (“B&P”) sections 6068(d), 6106, and 6128, among others. This discussion will focus on the B&P Code sections, violations of which constitute cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.

Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.

The B&P Code is the source that allows the State Bar to prosecute lawyers for violations of ethical requirements, and B&P Code section 6068 contains a long list of an attorney’s duties: “It is the duty of an attorney to do all of the following: …

(d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (Emphasis added.)

Opposing lawyers, as “officers of the court”, are duty-bound to not only tell the truth, but not to omit information that would cause the court or opposing counsel to be misled. This applies not only to litigated matters, but to “all causes confided to him or her”. See Shafer v. Berger, Kahn, et al. (2003) 107 Cal.App.4th 54 for a lengthy discussion of attorney misrepresentations which were determined to be fraudulent, including statements made by counsel during settlement negotiations.

B&P Code section 6106 states: “The commission of any act involving moral turpitude, dishonesty, or corruption whether the act is committed in the course of his relations as an attorney, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Emphasis added.) “Moral turpitude” has been defined by the California Supreme Court as “anything done contrary to justice or honesty.” See Bryant v. State Bar of California (1942) 21 Cal.2d 285.

B&P Code section 6128 states: “Every attorney is guilty of a misdemeanor who either:

Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.

Any violation of the provisions of this section is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both. (Emphasis added.)

The B&P Code governs the conduct of all lawyers, no matter what area or type of practice involved. Read together, the above-referenced sections make it clear that as officers of the court, sworn to “preserve, protect, and defend the Constitution” as all must be in order to practice law in the State of California, lawyers are required to be truthful in all of their dealings or be guilty of a misdemeanor. This isn’t a “fine line” — it is black letter law. An attorney who is guilty of criminal conduct — whether misdemeanor or felony — can be assured that it will negatively affect their ability to practice law going forward.

Lawyers have enjoyed an elevated status in our society dating back hundreds of years due to the rules of honesty and truthfulness that are the hallmark of our profession. The legal profession has taken a beating in the very recent past (as well as the present) due to some high profile examples of lawyers engaging in dishonest or outright fraudulent, deceitful, and even criminal behavior. If we want to reclaim the prestige that once was given to the likes of Thomas Jefferson and Abraham Lincoln, then we must maintain adherence to truth and honesty, regardless of what the rest or society is doing. We cannot lose sight of our professional obligations for the sake of winning a trial or getting the upper hand for our clients in a transactional matter. We are responsible for letting our clients know that these Rules of ethics trump any client demands or instructions to engage in a dishonest act, which should start at the first meeting and be included in every attorney’s engagement agreement.

Deborah Wolfe is a member of the SDCBA LEC, a CLS in legal malpractice law and civil trial law, and has practiced law in San Diego for over 40 years. source


When Zealous Advocacy Goes Too Far

The idea of zealous advocacy is not a foreign concept to an attorney. In fact, the preamble to the  Model Rules provides that “[a]s advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.” But when does zealous advocacy exceed the bounds of the law and cross the line into actionable conduct such as extortion? The Second District Court of Appeal recently examined this question again in the case of Geragos v. Abelyan (2023) 88 Cal.App.5th 1005.

Armen Abelyan was an IRS revenue agent who tried to use his status as a special agent to get out of a traffic ticket. Compounding his poor judgment, Abelyan also did this before he received his formal commission as a special agent. Double oops. Unsurprisingly, the District Attorney charged Abelyan with perjury and attempted impersonation of a public officer. Abelyan hired Geragos & Geragos to defend him at trial the next day and paid a $25,000 retainer. For some unknown reason, no one from the Geragos Firm showed up despite multiple calls to the firm. Abelyan was ultimately convicted.

After the trials and after he failed to recover his retainer from the Geragos Firm, Abelyan reported the Geragos Firm to a number of bar organizations and also retained Elliott N. Tiomkin of the Law Offices of Elliott N. Tiomkin to recover the retainer from the Geragos Firm. Ultimately, Tiomkin filed a lawsuit on behalf of Abelyan against the Geragos Firm and two of its attorneys, or the Geragos Parties.

In response, the Geragos Parties filed a cross-complaint against Abelyan, Tiomkin, and Tiomkin’s firm for civil extortion and alleged that Tiomkin had repeatedly threatened to report the Geragos Parties to the State Bar if they did not refund the retainer. Specifically, they allege that Tiomkin violated Rules of Professional Conduct Rule 3.10(a), which prohibits an attorney from “threaten[ing] to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”

Abelyan and Tiomkin and Tiomkin’s firm each filed a special motion to strike the cross-complaint as a strategic lawsuit against public participation under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court granted both motions and the Geragos Parties appealed.

The Second District Court of Appeal affirmed the trial court’s order and found the case distinguishable from Flatley v. Mauro (2006) 39 Cal.4th 299 — the leading case in California on when demand letters cross the line into extortion, which is not a constitutionally protected form of speech that falls within the scope of the anti-SLAPP statute.

Flatley involved Michael Flatley, an Irish entertainer known as the “Lord of the Dance” and an Illinois attorney (Mauro) who represented a woman who alleged that Flatley raped her in a Las Vegas hotel. Mauro sent Flatley a letter demanding $100 million dollars to settle the case and threatened, among other things, to expose Flatley for criminal activity unrelated to the alleged sexual assault, such as violations of immigration law or tax law. The California Supreme Court found the key passage in Mauro’s letter to be where he warned Flatley that, unless he settles, “an in-depth investigation” will be conducted into his personal assets to determine punitive damages and this information will then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT …. [¶] Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.”

The Flatley court cautioned that its opinion “should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion” — one which the Second District Court of Appeal heeded in finding that Tiomkin’s alleged conduct did not fall within the narrow exception enumerated in Flatley. The Geragos court held the Flatley exception is limited to criminal conduct and not a violation of the Rules of Professional Conduct or a civil statute. It also found that even if the Geragos Parties demonstrate that Tiomkin violated Rule 3.10(a), this does not constitute criminal conduct which falls within the narrow Flatley exception and affirming, yet again, the line between zealous advocacy and extortion. source