A federal court has concluded that an attorney who filed a fabricated news article with the court as a “demonstrative exhibit” did so with the intent to mislead the court. ABA Litigation Section leaders generally agree that the compensatory sanction awarded against the attorney is warranted and warn practitioners that the use of fabricated evidence in court is likely to get worse.
Al-Qarqani v. Chevron Corp began as an arbitration proceeding based on arbitration clause in a 1933 agreement between Saudi Arabia and Chevron’s predecessor, Standard Oil Company of California. Chevron refused to participate in the arbitration based on a “series of irregularities.” Nevertheless, the arbitration panel issued an $18,000,000,000 award against Chevron.
The claimants filed a motion to confirm the arbitration award in federal district court in California. The district court denied that motion based on the absence of an enforceable arbitration agreement between the parties, and the claimants appealed to the U.S. Court of Appeals for the Ninth Circuit. After oral argument, but before the Ninth Circuit issued its opinion, claimant’s counsel requested leave to attach “for demonstrative purposes, a Saudi Sun article that explains and provides an informative summary of factual and procedural events related to the 2014 and 2015 arbitration proceedings that took place in Cairo, Egypt and the U.S. confirmation and [e]nforcement proceedings in the United States.”
The Ninth Circuit examined the proffered article and concluded that it “appears to have been fabricated for purposes of this litigation.” The court ordered claimant’s counsel to show cause why sanctions should not be imposed on him for perpetuating a fraud on the court. The court also appointed a special master “to conduct any proceedings he deems appropriate to determine the legitimacy of the article[.]”
The special master conducted the hearing without counsel’s attendance or participation. The Report and Recommendation of the special master found that the Saudi Sun article was fabricated as there did not appear to be any such news publication, that the passages in the article are almost verbatim from counsel’s court filings, that the article was filed with the intent to mislead the court, and that it was “plainly designed to corrupt the legitimacy of the truth-seeking process.”
The special master also noted that referring to the article as a “demonstrative exhibit” did not mean that the attorney could avoid the rules of evidence or the Washington Rules of Professional Conduct, the state in which claimants’ counsel was licensed. Based on these findings, the special master concluded that sanctions were appropriate and that counsel should be required to reimburse Chevron for its attorney fees and costs incurred in addressing the fabricated article. The special master also recommended a referral to the Washington State Bar for possible disciplinary proceedings.
In response to the special master’s findings, counsel filed objections with the Ninth Circuit, arguing that the court lacked jurisdiction to impose sanctions, the special master violated certain procedural and due process requirements, the special master applied incorrect substantive law, and the sanctions resulted from judicial bias and misconduct. The court found these arguments meritless and adopted the special master’s report and recommendation. The Ninth Circuit then transferred the case back to the district court to determine the appropriate award of attorney fees.
Section leaders suggest that the claimant’s counsel lost sight of his ethical duties. “For two years, he fought this at every step,” says Thomas J. Donlon, Stamford, CT, Co-Chair of the Litigation Section’s Appellate Practice Committee. “The attorney threw it in the face of the appellate court, and attacks the Special master, attacked the chief judge, and it was a really amazing pattern of conduct,” he notes.
“You have to win with integrity and lose with grace,” advises Miranda L. Soto, Miami, FL, Co-Chair of the Section’s Professional Liability Litigation Committee. “It is not normal for anyone to fabricate evidence in any way. What we see are demonstrative aids that are incorrect or manipulating the evidence in the case. This is why there are meet and confers with counsel,” she explains. “There will always be some bad apples, but the majority of the bar takes the rules of professional responsibility and civility very seriously,” observes Soto.
The sanction is both compensatory and punitive, “because it goes to the defendant, but is also a sanction in that it is designed in large part to deter that kind of conduct,” observes Alan Jampol, Los Angeles, CA, Co-Chair of the Section’s Professional Liability Litigation Committee. “I see photoshopped photos, graphics that are not accurate representations of the truth, and a constant amount of inaccurate or clearly fabricated testimony, some of which is detected by cross-examination, experts, or otherwise, and some not. I do not know how much of such fabricated evidence courts realize exists, but judges rarely indicate disbelief or concerns about evidence during trial or other hearings,” notes Jampol. “I believe that fabricated articles like the one in Al-Qarqani will be much more pervasive as attorneys and their clients increasingly realize the extent of the potential use of AI,” he warns.
