f/k/a archives . . . real opinions & real haiku

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.

Update: Fla. House Cripples Lawyer Advertising

Filed under: pre-06-2006 — David Giacalone @ 2:29 pm

By a vote of 104 to 8, the Florida House passed the highly restrictive lawyer advertising bill we described and bemoaned in this space last month.  The Bill would make it illegal to advertise in “a manner that solicits legal business for a profit by urging a person to consider bringing legal action against another,” with “solicit” broadly defined to mean “to entreat, request or urge another to use the services of an attorney or a law firm.”   

This legislative broadside against lawyer ads succeeded overwhelmingly, despite opposition from bar groups (including p/i lawyers, the prime target of the Bill), and Staff Analysis raising potential free speech problems.  (pointer from sunEthics, 04-01-04)

No Solit gray small  The Staff Analysis contains a very good summary of the Bill and the changes it would make in currrent State laws for lawyer advertising.  It does not address the [bogus] issue of the legislative branch’s authority to make rules governing the regulation of lawyer conduct, which some lawyers had raised.

House Bill 1357 has been referred to the Senate Judiciary Committee; no companion bill yet exists in the Florida Senate.  No matter what you think of lawyer advertising, the commercial speech issues raised, or the ability of consumers to deal with hyperbole in lawyer ads, the Florida Legislature’s attitude should cause worry among lawyers who regularly use advertising.   Here’s the statement of purpose in the H.B. 1357:

(1) The Legislature has determined that legal advertising that solicits business by urging a person to file a suit destroys the personal responsibility of individuals, fosters frivolous litigation, and demeans the judiciary and the practice of law. This form of solicitation has created a crisis in this state’s judicial system, thus creating a compelling state interest in the state’s limited regulation of advertising as set forth in this section.



!key neg  Mama Giacalone must have been lobbying feverishly behind my back (she does make a great pasta sauce).  There’s no other way to account for the inclusion of this most humble of weblogs in Bob Ambrogi‘s newest version of 60 Sites in 60 Minutes.  Thanks, Bob (and, Mom, too)!

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