Wednesday, October 28, 2009

A Family Affair

One of the practice pointers I impart to students relates to the particular difficulties and potential errors in judgment that can arise from the representation of family and friends. To underscore the point comes a recent Massachusetts reprimand summarized on Bar Counsel's web page:

...respondent’s father filed a civil lawsuit against the respondent’s uncle and other parties (defendants). The lawsuit concerned a partnership agreement between the respondent’s father and uncle.

After the lawsuit was filed, the respondent’s father asked for his assistance, and the respondent filed a motion to appear pro hac vice in the lawsuit on behalf of his father. The respondent’s motion was allowed, and the respondent filed his appearance in the U.S. District Court for the District of Connecticut on June 8, 2006.

...respondent’s father executed his responses to the defendants’ amended first set of interrogatories. On that date, the father swore to the accuracy of his answers and signed the verification page for the interrogatory answers in the presence of the respondent and a notary public who notarized the answers.

...at a hearing on discovery issues, the defendants raised objections to the sufficiency of the father’s interrogatory responses, including the father’s failure to identify which documents he was relying on to prove his case. On October 13, 2006, the court ordered the father to provide amended answers to the interrogatories within ten days.

The respondent’s father had left for Lebanon on October 4, 2006, planning to return on November 11, 2006. He did not comply with the court’s order by October 23, 2006. On November 6, 2006, the court ordered that the father provide the supplemental interrogatory responses by no later than November 17, 2006, warning that no further extensions would be granted and that further failure to comply could result in sanctions.

The respondent’s father was unable to return to the United States as planned on November 11, 2006, due to violent demonstrations in Lebanon. He was also unable for the same reason to travel to Beirut to have documents notarized. On November 17, 2006, the respondent called his father, and read to him all of the supplemental interrogatory responses in their entirety. The father told the respondent that the responses were accurate and to forward them to the defendants.

On November 17, 2006, the respondent made a copy of his father’s signature from the May 12, 2006 verification page to attach to the supplemental interrogatory answers, notarized the copy of his father’s signature, and dated the certification November 17, 2006. The jurat above the respondent’s signature as notary stated “Subscribed and sworn to before me this 17th day of November 2006.” The respondent then sent his father’s supplemental interrogatory answers to the defendants’ counsel. The respondent’s father returned to the United States on November 18, 2006.

On December 8, 2006, the father was deposed by the defendants. Defense counsel asked the father whether he had signed the November 17, 2006 verification page in front of the respondent and whether he was in the United States on November 17, 2006. The father responded affirmatively to both questions. The respondent was present at the deposition but did not then correct the father’s false testimony or clarify the record.

On or about February 12, 2007, the respondent assisted his father in preparing an errata sheet for his deposition transcript. They did not correct the statement that the father had signed the verification in front of the respondent, but they did report that the father had not signed the verification page in front of the respondent on November 17, 2006, and that he had returned to the United States on November 18, 2006, not November 17, 2006. The respondent provided the errata sheet to the defendants knowing that his father had not fully corrected his deposition testimony.

On February 12, 2007, the defendants filed a motion for sanctions and to revoke the respondent’s pro hac vice status on the grounds that the respondent had falsely notarized his father’s November 17, 2006 supplemental answers to interrogatories and had permitted his father to falsely testify under oath at his deposition that he had signed the November 17, 2006 verification page in front of the respondent.

After receipt of this motion, the father and the respondent filed affidavits with the court in which they fully disclosed that the father had not signed the verification in front of the respondent and that the respondent had attached a copy of his father’s signature from his May 12, 2006 answers to interrogatories to the November 17, 2006 supplemental answers, and notarized the purported signature.

On March 12, 2007, the respondent filed a motion for leave to file a withdrawal of his pro hac vice status. On March 13, 2007, the Court allowed the respondent’s motion to withdraw as counsel. On May 22, 2007, the Court denied in part the motion for sanctions, after referring the matter of the respondent’s conduct to the Federal Grievance Committee. On August 14, 2007, the United States District Court for the District of Connecticut imposed a private censure.

By affixing a copy of his client’s signature to his client’s supplemental answers to interrogatories, and by notarizing the purported signature below a jurat that falsely stated that the document was signed in his presence on that date, the respondent violated Mass. R. Prof. C. 8.4(c) and 8.4(d). By failing promptly to correct his father’s false testimony at the deposition, by failing to advise his father of the limitations on his conduct, and by failing to ensure that the errata sheet provided to the defendants was correct, the respondent violated Mass. R. Prof. C. 1.2(d) and 8.4(c) and (d).

The respondent was admitted to the bar of the Commonwealth on December 27, 1995, and had no disciplinary history. In mitigation, the respondent played a minor role in the litigation, and his judgment was affected by the dilemma that faced his father. The supplemental interrogatory answers were true and accurate representations by the father, and the misrepresentation pertained solely to the question whether the father had signed the supplemental interrogatory answers and whether the respondent had witnessed the signature on the 17th of November. While the errata sheet was not entirely accurate, it was clear from the corrections that the respondent’s father could not have signed the verification in front of the respondent on the 17th of November when he was still in Lebanon.

The matter came before the Board of Bar Overseers on a stipulation of facts and a joint recommendation for a public reprimand. The board accepted the parties’ recommendation, and on August 10, 2009, the board ordered a public reprimand.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2009/10/a-family-affair.html

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