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December 20, 2018 Practice Points

When Preparing Your Client's Case, Trust but Verify Their Representations

Repeating untruths risks not only your credibility with colleagues and the court, but it also risks sanctions under an array of authorities.

By Joseph V. Schaeffer

Over the course of a lawyer's career, it’s probable that a client will be caught in an untruth by the other side. Regardless of the reasons for the untruth (and it can be traced to faulty memory as easily as malice), its discovery typically is devastating for the client's case. And it can also be devastating for the lawyer who failed to prepare for this contingency. After all, lawyers who repeat untruths risk not only their credibility with colleagues and the court, but they also risk sanctions under an array of authorities. So, how does the prudent lawyer protect himself or herself against the untruthful client? The case of Lawrence v. New York provides one possible answer. No. 15-cv-8947, 2018 WL 3611963 (S.D.N.Y. July 27, 2018).

Lawrence started as a civil-rights case. Plaintiff Angela Lawrence alleged that in late summer 2014, NYPD officers entered her home without a warrant, pushed her to the floor, damaged her property, and stole her money. Two years later—and a year after the complaint was filed—Lawrence provided her attorney with photographs that she claimed showed her apartment's condition after the NYPD's intrusion. Lawrence's attorney accepted his client's representations, saved the photos to a PDF, and produced Bates-labeled versions to opposing counsel.

Defense counsel then asked Lawrence about those photos in two separate depositions over the next several months. In the first deposition, Lawrence testified that her son or a friend had taken the photos. But in the second deposition, Lawrence testified that she had taken most of the photos, only a few were taken by her son, and none were taken by the friend. Defense counsel then obtained the photographs' native files, examined the metadata, and found that 95 percent had been taken more than two years after the alleged incident. In short, Lawrence had manufactured evidence.

This discovery prompted predictable reactions from both plaintiff and defense counsel. Lawrence's attorney sought (and was granted) leave to withdraw, whereas defense counsel sought sanctions against both Lawrence and her attorney under both Fed. R. Civ. P. 11, 26, and 37, and the court's inherent authority.

As expected, the court dismissed the case. But the court's analysis was slightly less expected. First, the court concluded that, although Lawrence committed discovery misconduct under Fed. R. Civ. P. 26, her actions were more properly characterized as a fraud on the court punishable under the court's inherent authority. Second, the court concluded that Lawrence did not commit any misconduct under Fed. R. Civ. P. 11 (because the photographs did not compel the conclusion that the incident did not occur) or under Fed. R. Civ. P. 37 (because she did not resist discovery). And third, the court declined to sanction Lawrence's attorney at all.

How did Lawrence's attorney escape sanctions? After all, he would have discovered that the photographs were manufactured if he had only reviewed the metadata prior to production. The answer here lies at least partly with luck: Despite increasing expectations of technological competency, the court accepted his professed unfamiliarity with metadata without question or criticism. Yet, the answer also lies with the attorney's reasonable pre-suit investigation and response upon learning of his client's misconduct. Critically, Lawrence's attorney did not rely solely on her representations before filing suit, but also reviewed reports regarding the incident and the NYPD officers' past conduct, interviewed her son, and obtained her medical records to evaluate her damages. The photographs thus not only corroborated Lawrence's statements to her attorney, but they also corroborated his own investigation. Finally, when he learned of her misconduct, Lawrence's attorney engaged ethics counsel, sought leave to withdraw, and disavowed his mistaken representations.

Although Lawrence's attorney obtained a near best-possible outcome by escaping sanctions, he nonetheless incurred financial losses (in lost opportunities and fees for ethics counsel). And so the Lawrence case should be viewed less as a defensive roadmap for when allegations arise but rather as a case for a diligent pre-suit investigation.

Joseph V. Schaeffer is with Spilman Thomas & Battle, PLLC in Pittsburgh, Pennsylvania.

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