When visiting the site, the attorneys found no defects in the only sidewalk abutting the church. The attorneys did notice, however, that the sidewalk across the street from the church was badly cracked. The attorneys photographed both sidewalks. Meanwhile, based on information they obtained from the city, the attorneys concluded that their client had no viable claim against the church.
Qualifications for a Claim
The attorneys showed the client photographs of the two sidewalks, making clear that if she fell on the sidewalk next to the church, she had no claim, but if she fell across the street, she could pursue a claim. When they then asked where she fell, the client stated she had fallen across the street from the church. The attorneys brought suit based on the new location.
As the case approached trial, the attorneys retained trial counsel. Tellingly, before giving the file to the trial attorney, the attorneys sanitized the file by removing documents that reflected their initial investigation. Ultimately, the case was dismissed after trial began when the client was impeached by her criminal convictions and her prior testimony denying them.
The disciplinary committee charged the attorneys with three violations of the New York Rules of Professional Conduct: Rule 8.4(c), prohibiting fraud and misrepresentation; Rule 8.4(h), prohibiting conduct that adversely reflects on one’s fitness as an attorney; and Rule 1.1(b), prohibiting a lawyer from taking on a matter he or she is not competent to handle. Faced with disciplinary charges, the attorneys admitted their conduct was dishonest and shameful. The court affirmed the nine-month suspension, noting that the attorneys (1) intentionally influenced their client to make a material misrepresentation, (2) filed a complaint against an innocent third party knowing it was fraudulent, (3) conducted discovery and attended court conferences for over a year despite knowing that the suit was a fraud, and (4) tried to cover their tracks by sanitizing the case file before trial.
What Went Wrong?
“These lawyers started out on the right track,” explains Thomas G. Wilkinson, Jr., Philadelphia, cochair of the Conflicts of Interest subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee, “which was to investigate [and] do their due diligence concerning the client’s story as to where she was injured. They pursued discovery in terms of the location of the accident. But if you find no support for a client’s claim, even if there is a serious injury, you can’t fabricate evidence and you can’t lead your client to falsely state facts.”
Avoiding Ethical Pitfalls at the Inception of a Case
How can a lawyer avoid a situation like this one? “It is always a dangerous thing to explain the law before you ask your client what happened,” offers Michael P. Downey, St. Louis, chair of the Rules and Regulations Subcommittee of the Section of Litigation’s Ethics and Professionalism Committee. Also, “don’t let your client’s problems become your problems. This woman had criminal convictions. She had factual problems with her case. She couldn’t really explain where she had fallen or why she had fallen. The reality is that in those circumstances, it’s important for the lawyer to realize that they’re protecting their own livelihood and license by saying, ‘I don’t think you’ve got much of a case here.’” Downey cautions that too often, lawyers feel that they need to press on with bad cases and try to fix them along the way.
Downey is quick to point out that this is not a situation where someone filed a pleading where they thought A was the case, but then they get further along and they find out A is not the case. “I think that’s one of the reasons why the court is so hostile to them is that they could have simply said to the client, “‘You know, we’ve done some investigating; we’ve really determined that we don’t think you have a viable claim’—but that wasn’t where they were willing to stop.”
Is It Ever Okay to Coach the Witness?
“There’s no ethics rule that directly limits the ability of a lawyer to coach, although it’s clear that a lawyer cannot cause a client to fabricate testimony,” explains Downey. “If you decide that you’re going to call a particular document by a particular name, you can help the client try to call the document by that name.” Likewise, it’s not inappropriate to explain the law, says Wilkinson: “That’s what lawyers do. However, if you explain the law with a wink, to suggest that the client should change the facts to conform to the law, that’s improper.”
Bethany Leigh Rabe is an associate editor for Litigation News.