Monday, December 5, 2005

Think Before You Write That E-Mail -- Part Deux

An earlier post (here) discussed an e-mail sent by a lawyer to his law firm partners describing his likely malpractice in representing a client, and I noted that this is not the type of thing to commit to writing.  Here's another example of what not to write down, and, more importantly, not to recommend to a client.  Tennessee attorney Scott Pratt was arrested for contempt of court and being investigated for attempting to suborn perjury by his client, and the evidence includes the following e-mail to his client, Meredith Grant, about her testimony in the upcoming DUI trial: "[T]hey won't have anyone there to testify how much you had to drink. You won't be charged with perjury. I've never seen them charge anyone with perjury, and everybody lies in criminal cases, including the cops. If you want to tell the truth, then we'll just plead guilty and you can get your jail time over with."  Grant provided the judge in her case with copies of two e-mails from Pratt, which led to his arrest and the pending investigation by the Tennessee Bureau of Investigation.  Not only is the recommended course of conduct completely unethical and illegal, but it is beyond stupid to put it in writing -- especially to a client, who may view the attorney's advice as a bargaining chip in her own case.  Remember what your mother always told you: Just because everyone else is doing it doesn't make it right. A story on (here) discusses the case, and this story is also highlighted on the CrimLaw blog (here). (ph)

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Tracked on Dec 29, 2005 1:23:04 PM


Dear Professors:
I noted the earlier Part One of "what not to write", and have the following comments.
In New Jesey, we have the doctrine of Circle Chevrolet v. Giordano, Halleran, etc., , 142 N.J. 280 (1995), which holds that a lawyer is ethically obligated (and legally, too) to inform a client immediately upon discovering it, "...that the client may have a claim against the attorney, even if such advice files in the face of the attorney's own interests." Id. at 291. The attorney is further obligated "to notify the client of the mistake, the client's right to obtain new counsel, and sue the attorney for negligence". Id. at 292. The decision is, of course, the client's, and the client deciding to not fire the attorney does not usually act as a waiver of the malpractice claim.
I've even defended a malpractice case where the alleged malpractice was the failure to make this required disclosure.
Moreover, in the world of malpractice insurance, carriers routinely demand full disclosure of all possible claims when renewing or instituting a policy, and the email you refer to could easily have been related to that duty. I recall a recent case in which non-disclosure led to non-coverage, and ethical trouble for the most innocent of three partners (two stealing money, third aware but not disclosing, all in trouble; disbarment, in NJ, is a lifetime ban....).
While your point, and its humor, is well taken, the law can require differently.

Posted by: scribe | Dec 12, 2005 11:46:28 AM

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