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    Dolores Dorsainvil
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When Zealous Representation Goes Wrong – A Look at the Rules on Litigation Ethics

Hiring an attorney is often the last resort for a person with some type of dispute with against another. Whether it be a criminal or civil matter, in a state or federal court, an administrative matter, a mediation or arbitration, attorneys are hired, and, expected to represent the best interest of their clients at all times. The ethical Rules of the legal profession demands it. However, attorneys also have conflicting duties. On one hand, although they are expected to fiercely represent their client’s interests, they also, as officers of the court, have duties to the court, adversaries, and third parties.  Attorneys are limited by the Rules of Professional Conduct which are to provide guidance on how these representations should occur. The same Rules that require zealous representation of a client’s legal issue also imposes significant, but important, limitations on the manner of that representation.  Some abusive litigation tactics include asserting non-meritorious claims, providing false evidence to the court, using improper means in gathering evidence, engaging in communications with represented parties, and unlawfully obstructing an opposing party’s access to evidence or witnesses.    This is not an exhaustive list or discussion of all of an attorney’s ethical obligations during litigation, but it serves as a primer on these Rules and provides guidance on how they should be observed.

The Preamble to the Maryland Lawyers’ Rules of Professional Conduct (hereinafter “the Rules”) make it clear that, “as advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”[1] However, Comment 9 of the Preamble demonstrates the inherent conflict that exists in the Rules:

“In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living. The Maryland Lawyers’ Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation zealously to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”[2]

As the Preamble demonstrates, attorneys do not have the option of utilizing any and every tactic at their disposal in their efforts to represent their clients zealously. The “by any means necessary” mantra does not apply. Instead, attorneys have to be mindful of other ethical obligations to the court, opposing counsel, and sometimes their own interests.   Articles 3 and 4 of the Rules speak directly to the lawyer’s ability to represent her clients.

Article 3 of the Rules limits the lawyer’s behavior as an advocate. It details the expected behavior when initiating litigation[3], prosecuting or defending the matter[4], making representations to the court on behalf of clients[5], communication and dealings with opposing counsel[6], and communicating with the trier of fact[7]. These Rules are critical to maintaining the reputation of the profession as they serve to ensure to the public that as advocates for their clients, lawyers will do so in a way that is honest and trustworthy, and will not knowingly resort to misrepresentation and deceit to obtain a favorable result for their client.

Similarly, Article 4 of the Rules seeks to maintain the integrity of the profession but extends the requirement of truthful communications beyond the attorney-client relationship. Specifically, the Rules seek to guide the lawyer on appropriate behavior while advocating for their client and dealing with non-lawyers or a trier of fact. The Rules guide the lawyer on communication to third parties while representing their clients[8], communication with those who are represented by counsel[9], how to interact with unrepresented individuals[10], and requiring the lawyer to respect the rights of individuals[11]. The Rules delineated in Article 3 seek to prevent a lawyer from gaining an unfair advantage in litigation by misrepresenting the facts or bullying non-lawyers and the unrepresented. Especially by dishonest means such as fraud, deceit or misrepresentation.

It is well established and generally understood that a lawyer is expected to be truthful at all times. Comment 2 of the Preamble recognizes that “as [a] negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”[12] These “honest dealings” are critical to ensure that the judicial system works and the Rules identify when this honesty is not only expected, but required, in Rules 3.3, 4.1 and 4.2. Each Rule is briefly discussed below.

Under Rule 3.3, a lawyer must show candor toward the tribunal. Specifically, the Rule states that 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; 2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or 3) offer evidence that the lawyer knows to be false.”[13] In other words, a lawyer is prohibited from knowingly lying to the court or anyone else. And when a lawyer discovers that a communication to the court is untrue, the lawyer needs to correct the statement. Even if the statement and the correction are at odds with his client’s interests.

Rule 4.1 of the Rules prevents a lawyer from “knowingly make a false statement of material fact or law to a third person or failing “to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client[14] As a result, the Rules also bar lawyers from using misleading anyone when representing the interests of her client. Furthermore protecting the integrity of the profession, the Rule also prohibits a lawyer from assisting clients commit any crime, or scheme that involves dishonesty.

Finally, Rule 4.2 prevents a lawyer from “communicat[ing] about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order.”[15] The purpose of this Rule is to prevent the overzealous lawyer from improperly gaining a competitive advantage by direct communication with an unrepresented party who without the assistance of their counsel, may unknowingly, speak against their own interest.

These select Rules are designed to guide lawyers on the appropriate methods of zealous representation. Or at a minimum, these Rules can also define the appropriate boundaries. Stepping outside of these boundaries can, and, will lead to significant negative consequences for not only the lawyer but her client as well.

Rule Enforcement: Court Action, The Disciplinary Process, and Mixter

So what happens when a lawyer violates the Rules discussed above or any of the Rules while representing a client during litigation? There are two modes of enforcement:  judicial action which is addressed by the court during the course of the underlying litigation or action during the disciplinary process.

During litigation, judges have broad discretion in dealing with lawyers who behave badly. If the court finds that a lawyer has violated the Rules the court can: 1) hold the lawyer in contempt of court, 2) limit the scope of the litigation, 3) bar the admission of certain evidence, 4) shorten litigation timelines, or impose economic or other sanctions upon the offending lawyer. These can be imposed sua sponte by the court or at the request of opposing counsel.  Any of these actions should put any lawyer on notice that their behavior is inappropriate and should be discontinued.  Additionally, depending on the sanction, the action could in fact jeopardize the interest of the client the lawyer was advocating for in the first place.

A lawyer may face enforcement by both the courts and the disciplinary agency.  In February 2015, the Court of Appeals of Maryland, in the matter styled Attorney Grievance Commission of Maryland v. Mixter, found that disbarment was the appropriate sanction for an attorney who made copious knowing and intentional representations to courts, parties and witnesses, and determined that such intentional misrepresentation demonstrated a lack of truthfulness and honesty which is prejudicial to the administration of justice and brings disrepute to the legal profession.[16]  The Court held that Mixter made “hundreds of misrepresentations without remorse or attempt to rectify his transgressions and found that he violated several of the Rules.[17]  The Court found that Mixter violated several of the Article 3 and Article 4 Rules outlined above. Specifically, the Court found Mixter in violation of Rules 3.2, 3.3, 3.4, 4.1 and 4.4 in addition to Rules 5.3, 8.1, and 8.4[18] The Court found that Mixter knowingly misrepresented facts to the court and failed to correct them by repeatedly representing 1) that “out-of-state witnesses are subject to the jurisdiction of Maryland courts”, 2) that valid subpoenas were issued and properly served”, the actual dates that service was made 3) that he had “made good faith efforts to resolve discovery attempts prior to filing motions”, and 4) that opposing parties or non-party witnesses had refused to respond to his efforts”.[19]  The Court found that these violations were not isolated to one case and that they happened on dozens of occasions.  The Court reasoned that Mixter “knew that he was making misrepresentations to numerous courts, parties and witnesses” and therefore violated the Rules.

The Court found similar acts of improper and overzealous representation on the part of Mixter in their 153 page opinion.  Although disbarment is rare for a single act that leads to finding of a violation of an Article 3 or Article 4 violation, lawyers should understand that practices such as these not only bring disrepute to the legal profession, but depending on the action taking by the trial courts, could derail their client’s case and can have serious consequences. Although every lawyer wants to zealously represent their clients, it must be done in a matter that is consistent with the Rules and their obligations as an officer of the Court.

 

[1] Comment [2] to the Preamble of the Maryland Lawyers’ Rules of Professional Conduct.

[2] Comment [9] to the Preamble of the Rules.

[3] Conduct Rule 3.1 Meritorious Claims and Contentions.

[4] Rule 3.2 Expediting Litigation.

[5] Rule 3.3 Candor Toward the Tribunal.

[6] Rule 3.4 Fairness to Opposing Party and Counsel.

[7] Rule 3.5 Impartiality and Decorum of the Tribunal.

[8] Rule 4.1 Truthfulness in Statements to Others.

[9] Rule 4.2 Communication with Person Represented by Counsel.

[10] Rule 4.3 Dealing with Unrepresented Person.

[11] Rule 4.4 Respect for Rights of Third Persons.

[12] Comment [2] to the Preamble of the Rules.

[13] Rule 3.3 Candor Toward the Tribunal.

[14] Rule 4.1 Truthfulness in Statements to Others.

[15] Rule 4.2 Transactions With Persons Other Than Clients.

[16] Attorney Grievance Commission of Maryland v. Mixter, Misc. Docket AG No. 7, Sept. Term, 2013. TDR No. 15-0202-20.

[17] Id.

[18] Id.

[19] Id.

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