Judges and Ethics Officials Disagree on Propriety of Some Litigation Tactics

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Summary: Bar authorities and courts sometimes give conflicting interpretations of what ethics rules permit or forbid on aggressive litigation tactics such as lawyers' use of deception, according to ethics expert Thomas E. Spahn.

Significance: Because bars and courts share authority to enforce ethics rules, lawyers should keep current on what both sources of authority have had to say on litigation ethics.

By Samson Habte  

On some legal ethics issues, it seems, trial judges are from Mars and bar disciplinary officials are from Venus. Or vice versa.

The different interpretations that courts and ethics officials sometimes give to disciplinary rules was a prominent theme in remarks that ethics expert Thomas E. Spahn made June 13 during his continuing legal education presentation on litigation ethics at Bloomberg BNA.

Spahn, a partner of McGuireWoods in Tysons Corner, Va., said that courts tend to be more accommodating than ethics authorities when assessing the propriety of arguably “deceptive” investigative tactics.

On the other hand, he added, judges tend to be less forgiving than bar officials when considering the scope of lawyers' obligations to disclose adverse case law.

Accordingly, Spahn said, “Although lawyers should be wary of taking their cues from case law rather than ethics rules and opinions,” attorneys nonetheless should keep up on emerging trends that reveal courts' and bars' dichotomous approaches to these issues.

Because judges and bar officials share responsibility for enforcing ethics rules, he said, lawyers should be cognizant of the fact that, in some instances, conduct frowned upon by bar officials will not necessarily draw the ire of judges. Alternatively, Spahn cautioned, lawyers should be aware that courts may sanction conduct that professional responsibility committees may have deemed proper in previous ethics opinions.

Spahn's program addressed a range of ethics quandaries faced especially by trial lawyers.

Some of these issues include: limitations on attorney speech when discussing cases with the media or criticizing judges in public; deceptive investigative tactics; the propriety of filing knowingly time-barred claims; and the scope of lawyers' duties to disclose unfavorable facts, adverse law, and unpublished decisions.

'Deceptive' Tactics.

The ethical boundaries of aggressive investigative tactics offer a clear example of disagreements between courts and bar groups, Spahn stated.

Courts have been more forgiving than bar officials, he said, when presented with complaints that lawyers unethically engaged in deceptive conduct to gather evidence of crimes, housing discrimination, or commercial misconduct.

Such tactics, he said, might involve prosecutors organizing “stings” against politicians suspected of bribery; civil rights lawyers directing clients to surreptitiously record conversations with property owners accused of housing discrimination; and plaintiffs' attorneys hiring investigators to pose as consumers in order to gather evidence of trademark violations and other commercial torts.

Spahn said that all of these actions arguably could be deemed black-letter violations of lawyers' professional obligations under four provisions in the ABA Model Rules of Professional Conduct: Rule 1.2(d) (assisting client fraud), Rule 4.1(a) (truthfulness in statements to others), Rule 5.3(c) (supervision of nonlawyers), and Rule 8.4(b) and (c) (prohibiting criminal or dishonest conduct). In relevant part, those rules provide that lawyers:

 

• cannot counsel clients to engage in fraudulent conduct;

• cannot make false statements to third persons in the course of representing clients;

• are responsible for the conduct of nonlawyers who commit ethics violations under their direction; and

• cannot engage in criminal conduct reflecting adversely on their honesty, or conduct “involving dishonesty, fraud, deceit or misrepresentation.”

 

Bar associations have endorsed deception by government lawyers engaged in criminal or national security investigations, often doing so through what Spahn characterized as “strained reading[s] of the ethics rules that they choose not to apply in the same way to private lawyers.”

And “a handful of states” have given their imprimatur to private attorneys' use of deceptive tactics to gather evidence of housing discrimination--although the ABA has not officially done so, Spahn noted. See, e.g., Arizona Ethics Op. 99-11 (1999).

Courts, however, have been even more embracing of such “deceptive” conduct, according to Spahn, who said that judges have uniformly endorsed it in criminal investigations and regularly blessed it in housing discrimination cases.


Deception as Investigative Tactic

In his presentation on litigation ethics, Thomas Spahn cited several court decisions in which judges refused to uphold sanctions brought against attorneys who engaged in deceptive investigative tactics on behalf of a commercial client.

One such case was Gidatex S.r.L. v. Campaniello Imports Ltd., 82 F. Supp.2d 119, 15 Law. Man. Prof. Conduct 481 (S.D.N.Y. 1999). There, a plaintiff's attorney directed investigators to pose as interior designers and record conversations with sales clerks employed by a furniture company accused of trademark violations.

“The court acknowledged that under relevant New York ethics rules, the salesclerks with whom the plaintiff's investigators spoke were 'represented parties' for purposes of the prohibition on ex parte contacts,” Spahn wrote in his program materials. “However, the court refused to find that plaintiff's lawyer had violated the prohibition.”

The Gidatex court acknowledged that the lawyer's conduct “technically satisfie[d] the three-part test generally used to determine whether counsel has violated the disciplinary rules” governing ex parte contacts. The court concluded, however, “that he did not violate the rules because his actions simply do not represent the type of conduct prohibited by the rules.”


Most importantly, Spahn said, judges have approved such tactics “in commercial settings,” while “bars traditionally limit their analysis to socially worthwhile contexts such as housing discrimination tests.” (See box.)

When in Doubt, Disclose?

Courts may be more lenient than bar officials in assessing the propriety of allegedly “deceptive” investigative tactics, but a different dynamic is evident in debates over other purported ethics violations, Spahn told the program attendees.

For example, he said, judges are less forgiving than ethics authorities in interpreting the scope of an attorney's duty to disclose adverse legal authority.

That obligation comes from ABA Model Rule 3.3(a)(2) and its state equivalents, which address attorneys' duties of candor toward a tribunal. The model rule instructs that a lawyer shall not knowingly “fail to disclose … legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Spahn said that the ABA's approach on this issue evolved in a way that resulted in a steady “reduction in lawyers' disclosure duties” to courts.

Unfortunately for some attorneys, judges have not gone along with this evolution, according to Spahn. “[A]s with other issues involving the duty of disclosure, some courts require far more than the ethics rules require,” he said, noting that “some courts take a remarkably broad approach.”

The ABA's first pronouncement on lawyers' professional responsibilities--the 1908 Canons of Professional Ethics--contained a fairly narrow duty of candor to courts, Spahn observed. “In essence,” he remarked, “the old Canon simply required lawyers not to lie about case law.”

In 1935, the ABA issued its Ethics Opinion 146, which greatly expanded that obligation. Citing the lawyer's duty as an officer of the court to aid the “administration of justice,” the opinion interpreted ethics principles as requiring a lawyer to “advise the court of decisions adverse to his clients' contentions that are known to [the lawyer] and unknown to his adversary.”

The ABA “did not explain the reach of this duty,” Spahn said, “but certainly did not limit the disclosure obligation to controlling case law or even to controlling jurisdictions.”

In Ethics Opinion 280, released in 1949, the ABA expressly stated that the duty to disclose adverse authority extended so far as to encompass any cases--even those from other states--that might “reasonably be considered important by the judge sitting on the case.”

That expansive declaration was pared back in subsequent years. The current scope of an attorney's obligation is described in Comment [4] to Model Rule 3.3, which explains that attorneys must disclose only “directly adverse authority in the controlling jurisdiction.”

Accordingly, the rule on its face does not require the disclosure of adverse law from another state--unless, Spahn noted, “that state supplies the controlling law in the case.”

However, in practice it appears that some judges prefer the former ethos on disclosure of adverse authority.

“[S]ome courts ignore the ABA Model Rules,” Spahn wrote in his materials, “and instead essentially revert to the 1949 ABA legal ethics opinion” that required the disclosure of any authority “which would reasonably be considered important by the judge sitting on the case.”

By Samson Habte  

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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