Tuesday, November 15, 2011

"Reasonable Remedial Measures"

You don't see many bar discipline cases that address the issue of what constitutes a "reasonable remedial measure" under Rule 3.3 when a lawyer learns of false evidence or fraudulent client conduct.

In a case filed yesterday, the Illinois Review Board found the measures taken by the attorney sufficient and recommended that surviving charges against the attorney be dismissed.

The facts are complicated, involving an attorney admitted in 1966 who has engaged primarily in solo practice. He had represented the client's parents and known the client ("Nick") since childhood.

Nick was married with six kids. He was also having an affair with the nanny. The attorney represented Nick in defending a divorce and domestic violence charges. Nick and Mrs. Nick later reconciled.

The attorney then agreed to represent the nanny in a divorce action against Mr. Nanny. As part of that matter, Mr. Nanny was ordered to pay temporary support for the child born while he was married to Mrs. Nanny. Mrs. Nanny testified that her husband was the father of her child.

Trouble was, the child's father was Nick, a fact learned by the attorney subsequent to the hearing where support had been ordered. He told Mr. Nanny's attorney but not the court. He also represented Nick at a hearing where his paternity for the child was established.

Meanwhile, Mrs. Nick had filed a new divorce action. The matter unraveled when she retained new counsel, who was advised of the paternity action and sought to intervene.

The complaint was initiated by three judges who presided over the various matters.

The Review Board found that the attorney's behavior was reasonable:

Here, [the attorney] Rantis reasonably believed that his communications with [Mrs. Nanny] Sylwia and [Mr. Nanny's] attorney Zarnecki were sufficient to undo the effects of Sylwia’s false statements. After learning the results of the paternity test, Rantis advised Sylwia that she could no longer collect child support from [Mr. Nanny] Dariusz, that she would be required to reimburse him, and that it would be necessary to file a parentage action to legally establish Nick’s paternity. There is no evidence in the record that Sylwia declined to cooperate with Rantis’s advice. On the contrary, the evidence showed that Rantis, presumably with Sylwia’s approval, told attorney Zarnecki that Dariusz should stop making support payments. Rantis then worked with attorney Zarnecki on a settlement in the dissolution matter, which was intended to resolve the reimbursement of Dariusz’s prior support payments and to clarify that Dariusz was not Constantine’s father. Rantis and attorney Zarnecki believed that these steps adequately addressed the issue. Attorney Zarnecki testified that he felt that Rantis was always honest and straightforward with him regarding the paternity issue.

We do not disregard Rantis’s duty of candor toward the court. However, the evidence did not demonstrate that disclosure to the court was required during the stage of the proceedings at issue. Although the order of protection remained in effect, the record indicates that it was extended by agreement while the parties worked on the settlement. The order of protection was not enforced, and Rantis had no reason to believe that it would be enforced.

Between the time that Rantis disclosed Nick’s paternity to attorney Zarnecki and December 8, 2008, when Judge Betar confronted Rantis about the parentage action, nothing of significance occurred in the Murawska/Ziembinski dissolution case that would have compelled the disclosure of Sylwia’s false statements. Additionally, by the time Rantis appeared before Judge Betar on December 8, 2008, he and attorney Zarnecki had filed pretrial memoranda indicating that Dariusz was not Constantine’s father and providing for the reimbursement of Dariusz’s earlier payments to Sylwia. The record does not reveal, and the Administrator does not explain, how an earlier disclosure was necessary or would have made any difference in the Murawska/Ziembinski dissolution case. This does not mean that the case may not have reached the point where disclosure was necessary, but the case resolved itself prior to that time. For all of the foregoing reasons, we conclude that Rantis’s remedial measures were reasonable and the circumstances did not require disclosure of Sylwia’s false statements to Judge Betar. Consequently, we recommend that the Hearing Board’s finding that Rantis violated Rule 3.3(a)(1) be reversed.

Any PR profs out there looking for an exam question? (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2011/11/reasonable-remedial-measures.html

Bar Discipline & Process | Permalink

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