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April 7, 2004

Associate Disciplined for Remaining Silent

Filed under: pre-06-2006 — David Giacalone @ 11:52 pm

The Connecticut Supreme Court made it very clear on Tuesday that a junior attorney may not remain silent in the presence of falsehoods to a court by co-counsel.  As one reporter put it, “Even if it enrages the senior partner or undermines the argument, a lawyer is duty-bound to speak up and prevent a judge from getting the wrong impression.”   Law.comThe Connecticut Law Tribune, “Associate Misled Judge by Remaining Silent,” by Thomas B. Scheffey, 04-08-04)

 

gavel neg  Writing for the court in Daniels v. Alander, in an unaniimous decision upholding a judicial reprimand, Justice Joette Katz said,


“[I]t is apparent that the drafters of rule 3.3, which is entitled ‘Candor toward the Tribunal,’ did not intend to limit its application solely to the party actually making the affirmative misstatement. Depending on the circumstances, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”



  • “The plaintiff has not presented, nor can we identify, any sound reason to graft an exception onto the rule when an attorney whose conduct is at issue is an associate joined by his employer.”


  • The Court also noted that “[S]eparate and apart from the obligations imposed independently by rule 3.3 (d), the very fact that this action began as an ex parte proceeding was a unique circumstance that created an enhanced duty of candor toward the trial court.”

mouse lawyer flip . . . mouse lawyer small  I agree fully with the Court.  Taking part in a deception by keeping silent is contrary to the individual attorney’s responsibility to the court and the justice system, and should be contrary to his or her private ethical code as a lawyer.  I can already hear the wailing of bleeding hearts and enablers, who say such a rule is “unfair” to the poor, powerless associate.  Indeed, the attorney’s lawyer argued below against ‘the hired associate in the role of policing his employer.”

Yes, it does and it should.   As Andy Sipowicz reminded his spineless boss just last night on NYPD Blue:  “You have to stand up for what you believe in — not just some of the time.”   It’s never too soon for a lawyer to learn this lesson — and it quickly becomes too late, if a lawyer is “nurtured” in an environment that allows duplicity.


An obligation to speak out to avoid deception should make a lot of lawyers a lot more careful about who they are willing to work for and work with; and, it might even deter some senior attorneys from engaging in deception in the first place.  Any other decision here would have been highly disappointing for us here at ethicalEsq.




  • Having personally seen far too many lawyers stretch the facts in pleadings and discussion with the court in family/divorce cases, I am particularly glad to see this outcome in a custody/visitation dispute.


  • Update 04-08-04):  You’ll find some strong opinions by checking out the Comment string to this posting.  Carolyn Elefant and I seem to have very different perspectives on the issues.  Please add yours.

10 Comments

  1. Two points. First, as a general matter, I have mixed feelings about imposing an ethical obligation on an associate to correct a partner’s misrepresentation particularly in the type of case that you discussed, where the misrepresentation was quite minor and brought minimal sanction to the attorney. Had the associate opened his mouth in this case, he’d have been summarily fired while the partner would only get a slap on the wrist. Thus, the associate would ultimately face the greater penalty for coming forward.
    Now, perhaps in an Enron type situation, where the stakes are high, if the associate lost his job, he’d probably be better off (as he’d be distanced from the fall out) and the partner would at least go to jail or otherwise pay a real penalty. But why should associates lose their job over a minor infraction?
    And this brings me to my second point: the case that generated all of these issues was kind of a stupid, trivial matter to begin with. Consider the facts: NJ lawyer tells CT associate that NJ court would have jurisdiction over an emergency custody petition but that she is not inclined to file one for fear of angering NJ judge. CT associate relays conversation to partner and at an emergency custody hearing in CT, partner tells CT judge that NJ attorney did not believe that NJ court had jurisdiction. So CT judge consults with NJ judge and grants emergency petition with hearing to later be held in NJ.
    Then, NJ attorney finds out about the decision and writes a nasty letter to the CT judge. Now, CT judge’s feelings are hurt so he convenes this disciplinary charade and claims that he would not have made that ruling if (trying to follow this logic) partner had told him that NJ attorney told the associate that she believed NJ court really had jurisdiction. Didn’t the CT judge consult with the NJ judge? If CT judge was unsure of jurisdiction, why didn’t he just ask the NJ judge? I don’t see how what the NJ attorney said made a bit of difference. Also, if anything, I thought the partner’s misrepresentation actually made the NJ attorney look better. Here is an attorney whose client’s children are in imminent danger of being returned to a drug addicted crazy father and she is reluctant to seek emergency relief. Should the partner have said that?
    Now, because of all this nonsense – and the frail egos of the judge and the NJ attorney, an associate has basically had his career flushed down the toilet.

    Comment by Carolyn Elefant — April 8, 2004 @ 3:03 am

  2. Two points. First, as a general matter, I have mixed feelings about imposing an ethical obligation on an associate to correct a partner’s misrepresentation particularly in the type of case that you discussed, where the misrepresentation was quite minor and brought minimal sanction to the attorney. Had the associate opened his mouth in this case, he’d have been summarily fired while the partner would only get a slap on the wrist. Thus, the associate would ultimately face the greater penalty for coming forward.
    Now, perhaps in an Enron type situation, where the stakes are high, if the associate lost his job, he’d probably be better off (as he’d be distanced from the fall out) and the partner would at least go to jail or otherwise pay a real penalty. But why should associates lose their job over a minor infraction?
    And this brings me to my second point: the case that generated all of these issues was kind of a stupid, trivial matter to begin with. Consider the facts: NJ lawyer tells CT associate that NJ court would have jurisdiction over an emergency custody petition but that she is not inclined to file one for fear of angering NJ judge. CT associate relays conversation to partner and at an emergency custody hearing in CT, partner tells CT judge that NJ attorney did not believe that NJ court had jurisdiction. So CT judge consults with NJ judge and grants emergency petition with hearing to later be held in NJ.
    Then, NJ attorney finds out about the decision and writes a nasty letter to the CT judge. Now, CT judge’s feelings are hurt so he convenes this disciplinary charade and claims that he would not have made that ruling if (trying to follow this logic) partner had told him that NJ attorney told the associate that she believed NJ court really had jurisdiction. Didn’t the CT judge consult with the NJ judge? If CT judge was unsure of jurisdiction, why didn’t he just ask the NJ judge? I don’t see how what the NJ attorney said made a bit of difference. Also, if anything, I thought the partner’s misrepresentation actually made the NJ attorney look better. Here is an attorney whose client’s children are in imminent danger of being returned to a drug addicted crazy father and she is reluctant to seek emergency relief. Should the partner have said that?
    Now, because of all this nonsense – and the frail egos of the judge and the NJ attorney, an associate has basically had his career flushed down the toilet.

    Comment by Carolyn Elefant — April 8, 2004 @ 3:03 am

  3. Agree with the general principle, but reading the facts of the case, not sure it warrants discipline of the associate. Just as there is an enhanced duty of candor in an ex parte proceeding, there should be an enhanced duty for the person actually doing the talking. Not that the silent associate has _no_ duty to speak up, just that it is a lesser duty.

    Agree that people should “Stand up for what you believe,” as Justice Clarence Thomas said. And yes, people should do so no matter what the consequences are. But that does not change that there are consequences and that those consequences are wrong.

    Which gets me back to my position on the general intolerance of dissent among the Minnesota Bar. That people should speak up no matter what the consequences in no way nullifies the First Amendment rights of lawyers to keep quiet on their ideological and religious beliefs.

    Comment by Peter Swanson — April 8, 2004 @ 1:33 pm

  4. Agree with the general principle, but reading the facts of the case, not sure it warrants discipline of the associate. Just as there is an enhanced duty of candor in an ex parte proceeding, there should be an enhanced duty for the person actually doing the talking. Not that the silent associate has _no_ duty to speak up, just that it is a lesser duty.

    Agree that people should “Stand up for what you believe,” as Justice Clarence Thomas said. And yes, people should do so no matter what the consequences are. But that does not change that there are consequences and that those consequences are wrong.

    Which gets me back to my position on the general intolerance of dissent among the Minnesota Bar. That people should speak up no matter what the consequences in no way nullifies the First Amendment rights of lawyers to keep quiet on their ideological and religious beliefs.

    Comment by Peter Swanson — April 8, 2004 @ 1:33 pm

  5. I was hoping you’d Comment, Carolyn.  Thanks.
    Here’s a situation where I’m perhaps more optimistic about lawyers than you are.  I disagree that the associate would have been automatically fired, if he had spoken up to the judge.  Davis, the “misstating” lawyer, was a senior associate in the firm, and the silent Driscoll, a junior associate.  I’d like to think that either Davis would have seen his impropriety (and been too embarrassed to bring it up later to Driscoll) or, if Davis had sought retribution when they returned to their office, that a partner in the firm would have praised Driscoll for making a clarification to the court, . 

    If Driscoll were instead fired for doing his ethical duty, it would have been a blessing for him to be out of such a law firm — unless, he is more concerned about his salary than his integrity.  Of course, it can be professionally and financially and personally traumatic to “do the right thing” or uphold ethical principles or duties.  Being ethical can have major negative consequences, but those consequences are not a valid reason to ignore the obligations.  Why have ethical obligations and rules if we are only expected to follow them when it is easy? 
    Also, if fired for speaking up, the associate should have reported the firm to bar counsel and/or the court, for it’s unfair dismissal, which I believe would have been a far graver ethics violation.

    I also disgree with you that it was the judge’s reprimand that “flushed” Driscoll’s career down the toilet.  I’ve never heard of a lawyer’s career being ruined by one reprimand.  Lawyer Driscoll’s ethical error would not be common knowledge, had he accepted the reprimand.  He’s brought his notoriety on himself
    Simarly, I hope there is no de minimis exception to the duty of candor to the court.  If a lawyer isn’t willing to interrupt or supplement the presentation of a superior lawyer on a matter concerning interstate custody jurisdiction, how could he or she ever have the courage to undo multi-million dollar deals or major felony cases by coming forward? 
    I’ve got to say that your calling the case and situation trivial and stupid, and impugning the judge’s motives (and the NJ lawyer’s), is exactly the kind of excuse-making and enabling that helps to give the legal profession its reputation for lying and for failing to police itself.   As a former law clerk in Family Court, and law guardian for hundreds of children, I know how a request for an emergency hearing in these kinds of cases can disrupt an already over-burdened court schedule — and I know the subject matter is important.  (I also know (1) that hearsay about supposed dangers in another state is often exaggerated, and (2) some lawyers come to court with a history of shading the truth.)
    Once judge Alander received the strong, detailed letter from the NJ attorney, how could he possibly ignore it?  Once he found out more about Driscoll’s central role in the communication process, how could he do nothing?  And, just how is a judicial reprimand for participating in a material deception an overreaction?  Your Comments have made me go back to the fuller factual development in the Conn. Appellate Court decision of April 2003, and it only reenforces my conclusions.
    For example, the Appellate Court says:

    “Although we observe, as did the trial court, that Driscoll did not actually utter the false statement to the court, we also observe that Daniels represented Driscoll’s words to the court in his presence. Driscoll was not a bystander to the proceedings taking place on his client’s behalf; he appeared before the court on Montalvo’s behalf. Daniels spoke about Driscoll’s knowledge, i.e., what Davis had told Driscoll. We conclude that under those circumstances, Driscoll would have upheld his duty of candor to the court by simply addressing the court himself to remedy the misstatement or by addressing his cocounsel and informing him to do so.
    “Under Driscoll’s interpretation of the rule, Driscoll, an officer of the court, would be free to do nothing while his cocounsel made any number of misstatements about facts that purportedly came, and under the circumstances of this case, could only have come, from his own personal observations and knowledge of events that occurred outside of the court’s presence.  Such conduct does not accord with an attorney’s duty to deal fairly and candidly with the court, and it belies the duty imposed by rule 3.3 (a) (1). Under those unique circumstances, we find the fact that Driscoll did not actually utter the falsity to the court to be of no consequence.”

    The opinion in Dissent in quite weak, in my opinion, as it turns on whether the deception was on a “material” point.

    When the case came to the Connecticut Appeals Court and then Supreme Court, I think they applied the correct rule of law to the issue before them — does Rule 3.3 apply to the failure of a lawyer to correct a misleading and material statement to a court made by co-counsel in his or her presence?   The only proper answer is a strong “yes.” 
    [While writing this, I received your Comment, Peter.  Thanks for chiming in; I think the above addresses your concern in this case.]

    Comment by David Giacalone — April 8, 2004 @ 2:47 pm

  6. I was hoping you’d Comment, Carolyn.  Thanks.
    Here’s a situation where I’m perhaps more optimistic about lawyers than you are.  I disagree that the associate would have been automatically fired, if he had spoken up to the judge.  Davis, the “misstating” lawyer, was a senior associate in the firm, and the silent Driscoll, a junior associate.  I’d like to think that either Davis would have seen his impropriety (and been too embarrassed to bring it up later to Driscoll) or, if Davis had sought retribution when they returned to their office, that a partner in the firm would have praised Driscoll for making a clarification to the court, . 

    If Driscoll were instead fired for doing his ethical duty, it would have been a blessing for him to be out of such a law firm — unless, he is more concerned about his salary than his integrity.  Of course, it can be professionally and financially and personally traumatic to “do the right thing” or uphold ethical principles or duties.  Being ethical can have major negative consequences, but those consequences are not a valid reason to ignore the obligations.  Why have ethical obligations and rules if we are only expected to follow them when it is easy? 
    Also, if fired for speaking up, the associate should have reported the firm to bar counsel and/or the court, for it’s unfair dismissal, which I believe would have been a far graver ethics violation.

    I also disgree with you that it was the judge’s reprimand that “flushed” Driscoll’s career down the toilet.  I’ve never heard of a lawyer’s career being ruined by one reprimand.  Lawyer Driscoll’s ethical error would not be common knowledge, had he accepted the reprimand.  He’s brought his notoriety on himself
    Simarly, I hope there is no de minimis exception to the duty of candor to the court.  If a lawyer isn’t willing to interrupt or supplement the presentation of a superior lawyer on a matter concerning interstate custody jurisdiction, how could he or she ever have the courage to undo multi-million dollar deals or major felony cases by coming forward? 
    I’ve got to say that your calling the case and situation trivial and stupid, and impugning the judge’s motives (and the NJ lawyer’s), is exactly the kind of excuse-making and enabling that helps to give the legal profession its reputation for lying and for failing to police itself.   As a former law clerk in Family Court, and law guardian for hundreds of children, I know how a request for an emergency hearing in these kinds of cases can disrupt an already over-burdened court schedule — and I know the subject matter is important.  (I also know (1) that hearsay about supposed dangers in another state is often exaggerated, and (2) some lawyers come to court with a history of shading the truth.)
    Once judge Alander received the strong, detailed letter from the NJ attorney, how could he possibly ignore it?  Once he found out more about Driscoll’s central role in the communication process, how could he do nothing?  And, just how is a judicial reprimand for participating in a material deception an overreaction?  Your Comments have made me go back to the fuller factual development in the Conn. Appellate Court decision of April 2003, and it only reenforces my conclusions.
    For example, the Appellate Court says:

    “Although we observe, as did the trial court, that Driscoll did not actually utter the false statement to the court, we also observe that Daniels represented Driscoll’s words to the court in his presence. Driscoll was not a bystander to the proceedings taking place on his client’s behalf; he appeared before the court on Montalvo’s behalf. Daniels spoke about Driscoll’s knowledge, i.e., what Davis had told Driscoll. We conclude that under those circumstances, Driscoll would have upheld his duty of candor to the court by simply addressing the court himself to remedy the misstatement or by addressing his cocounsel and informing him to do so.
    “Under Driscoll’s interpretation of the rule, Driscoll, an officer of the court, would be free to do nothing while his cocounsel made any number of misstatements about facts that purportedly came, and under the circumstances of this case, could only have come, from his own personal observations and knowledge of events that occurred outside of the court’s presence.  Such conduct does not accord with an attorney’s duty to deal fairly and candidly with the court, and it belies the duty imposed by rule 3.3 (a) (1). Under those unique circumstances, we find the fact that Driscoll did not actually utter the falsity to the court to be of no consequence.”

    The opinion in Dissent in quite weak, in my opinion, as it turns on whether the deception was on a “material” point.

    When the case came to the Connecticut Appeals Court and then Supreme Court, I think they applied the correct rule of law to the issue before them — does Rule 3.3 apply to the failure of a lawyer to correct a misleading and material statement to a court made by co-counsel in his or her presence?   The only proper answer is a strong “yes.” 
    [While writing this, I received your Comment, Peter.  Thanks for chiming in; I think the above addresses your concern in this case.]

    Comment by David Giacalone — April 8, 2004 @ 2:47 pm

  7. I agree with Carolyn on this issue. This action was the result of judicial arrogance run amuck. I am aware of no other profession in which an employee with no power, no discretion, and no recourse is put into the impossible “police thy boss” situation into which this associate was placed by the Supreme Court. What’s especially convincing are Carolyn’s points about the low importance of the supposed, and questionable, “misrepresentations” made by the partner.

    Comment by UCL — April 15, 2004 @ 4:52 pm

  8. I agree with Carolyn on this issue. This action was the result of judicial arrogance run amuck. I am aware of no other profession in which an employee with no power, no discretion, and no recourse is put into the impossible “police thy boss” situation into which this associate was placed by the Supreme Court. What’s especially convincing are Carolyn’s points about the low importance of the supposed, and questionable, “misrepresentations” made by the partner.

    Comment by UCL — April 15, 2004 @ 4:52 pm

  9. I know of no other profession where honesty and trust should be so important — especially honesty when it comes to influencing the justice system.
    Note, the superior was telling the judge what the junior lawyer had learned — and being deceptive about it — in the presence of said junior lawyer.
    I suggest that you read the appellate decision cited in my reply to Carolyn before you decide this just is a matter of an arrogant judge.
    Would you be willing to set such a low standard of honesty for lawyers, if you had to put your name to this Comment?
     

    Comment by David Giacalone — April 15, 2004 @ 5:14 pm

  10. I know of no other profession where honesty and trust should be so important — especially honesty when it comes to influencing the justice system.
    Note, the superior was telling the judge what the junior lawyer had learned — and being deceptive about it — in the presence of said junior lawyer.
    I suggest that you read the appellate decision cited in my reply to Carolyn before you decide this just is a matter of an arrogant judge.
    Would you be willing to set such a low standard of honesty for lawyers, if you had to put your name to this Comment?
     

    Comment by David Giacalone — April 15, 2004 @ 5:14 pm

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