78 J. Kan. Bar Assn 1, 30 (2009). Deception and Misrepresentation in the Practice of Law.

• Author: By Brian J. Moline (published posthumously with family's permission)

Kansas Bar Journal

Volume 78.

78 J. Kan. Bar Assn 1, 30 (2009).

Deception and Misrepresentation in the Practice of Law

Kansas Bar Journal Volume 78, January 2009 78 J. Kan. Bar Ass'n 1, 30 (2009) Deception and Misrepresentation in the Practice of Law By Brian J. Moline (published posthumously with family's permission) I. Introduction

Deception and misrepresentation as litigation tactics have always posed ethical challenges for lawyers. Sensitivity to the rights of others, particularly unrepresented persons who may become involved in litigation, is obviously an important ethical concern. On the other hand, effective advocacy of a client's cause is another important professional and contractual obligation.

A fine but very real line between zealous advocacy and prohibited conduct exists that lawyers occasionally cross in the heat of battle, consequently running afoul of the Kansas Rules of Professional Conduct (KRPC) provisions concerning deception and misrepresentation. This article will explore the interplay among Rules 4.1 and 4.4 and related rules and review case law with an eye toward comparing legal tactics with professional responsibility requirements.

II. KRPC 4.1 - Truthfulness in Statements to Others

In the course of representing a client, a lawyer shall not knowingly

(a) make a false statement of material fact or law to a third person, or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited or made discretionary under Rule 1.6 [confidentiality].

This rule expands the attorney's ethical accountability for professional behavior toward clients and judges to include certain third persons. Whether a particular statement shall be regarded as coming within the purview of Rule 4.1 can depend upon the particular circumstances. While a lawyer is required to be truthful when dealing with others on a client's behalf, there is no affirmative duty to inform an opposing party of all relevant facts. But a prohibited misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Moreover, misrepresentations can also occur by failure to act when circumstances warrant action.(fn1)

Cases suggest the degree of ethical accountability varies according to the severity of the misrepresentation. Misrepresentation can easily degenerate into fraud and deceit, triggering multiple ethical prohibitions. Thus, an Arizona prosecutor was disbarred when he intentionally presented the false testimony of a detective in a capital murder case.(fn2) His conduct was held to violate multiple ethical rules, including candor to the tribunal, false statements of material fact and law, and conduct prejudicial to the administration of justice.

However, there is precedent to support the assertion that misrepresentation, even deceit, is permissible when the ultimate goal is consistent with larger issues of social utility and the administration of justice. In an Illinois case,(fn3) a police officer told the prosecuting attorney that defense counsel had offered him a bribe in exchange for false testimony. In order to expose the bribery, the prosecutor instructed the officer to testify falsely so that the bribe would be paid and the corrupt attorney brought to justice.

A deeply conflicted Illinois Supreme Court delivered four separate opinions, including two dissents. In the end, the Illinois Court determined that the prosecutor had violated multiple ethical rules but refused to sanction him since he acted "not out of self-interest but from a sincere desire to bring a corrupt attorney to justice."(fn4)

The U.S. Supreme Court blessed the law enforcement dispensation at least in the investigative context when the court verified that deceptive tactics are occasionally necessary to gather evidence in some investigations. In Sorrells v. United States,(fn 5) the Court held that dissembling, even lying, is frequently necessary to reveal criminal design, illegal conspiracy, or other offenses.

Law enforcement officials often utilize undercover agents who routinely use deception to detect unlawful conduct. It has been held that the use of undercover operatives is not forbidden and does not, without more, establish entrapment as a matter of law.(fn6)

When an attorney becomes involved in the deception, however, the attorney faces a potential ethical dilemma. It can, of course, be argued that a dispensation from ethical standards when the attorney is operating from "laudable motives" creates a troublesome, if not dangerous, double standard. It would be hard to imagine, for example, a civil liberties lawyer being given similar consideration because his conduct was motivated by the laudable goal of protecting First Amendment freedoms.

In the civil arena, the use of undercover operatives utilizing methods that include deception and misrepresentation has increased in recent years. When employed for socially desirable goals, such as detecting illegal discrimination in housing or prohibited employment practices, courts have often approved of techniques that might otherwise be seen as misleading or deceptive and deemed the evidence gathered admissible. The vicarious responsibility of supervising attorneys when nonlawyer investigators have used deception and misrepresentation has been more problematic.(fn7)

When misrepresentation and deceit occur without law enforcement or social utility justification, courts are not so understanding. An Oregon lawyer representing a landowner who believed his neighbor was permitting her property to be used as a base of operation by anti-animal cruelty activists hired a private investigator to pose as a journalist and "interview" the neighbor, hoping to elicit incriminating statements. The conduct constituted misrepresentation "through the acts of another" and warranted public censure.(fn8) Similarly, an attorney who intentionally misrepresented his identity and made false statements to employees of a medical records company was reprimanded.(fn9)

Kansas cases seem to follow the general trend. A Kansas lawyer unethically allowed his Interest on Lawyers' Trust Account to be used as a conduit when money belonging to third parties was placed in the trust account. Those funds were then transferred to a corporation in which he was an officer and shareholder and eventually found their way to personal accounts in England of another shareholder and officer. The funds transferred to England ultimately disappeared, and the lawyer was suspended for two years for Rule 4.1 and other violations.(fn10)

Similarly, a Kansas lawyer was indefinitely suspended for multiple violations, including Rule 4.1, when he falsely told a client he had filed an appellate brief on the client's behalf when he had not.(fn11)

While suspended for failure to pay her annual registration fees, another Kansas lawyer nevertheless actively continued to practice law. Among other violations, she was found to have knowingly filed a frivolous answer and counterclaim in a suit brought against her by an apartment complex to which she owed rent. The allegations included a Rule 4.1 violation that she knowingly provided false statements of material fact to a third person when she filed the false counterclaim and signed the pleading as an attorney.(fn12) She was disbarred for multiple violations.

A Kansas lawyer was recently disbarred when he knowingly and repeatedly converted attorneys' fees belonging to his law firm to his own use. The Rule 4.1 violation was triggered when he falsely stated to a client in a letter that he would reimburse his law firm for the expenses advanced by the firm in the client's cause and when he misrepresented the actual fees collected in his handwritten sheet of cases resolved and fees generated.(fn13)

In a prior case, the same attorney was suspended for 18 months under the earlier Model Code of Professional Responsibility when he failed to file a client's claim within the statute of limitations. The attorney untruthfully told the client he had received a settlement offer and advised the client to accept it. In truth, the attorney simply paid the client out of his law firm's funds.(fn14)

Rule 4.1 was violated when a lawyer falsely told a client's medical providers that her settlement was inadequate to cover all her expenses and asked for discounts on her medical bills, which he simply kept.(fn15) Also, a lawyer was disciplined when he served a purported "Notice by County Surveyor to Landowners" on the opposing party when no county surveyor had been consulted and no action had been filed.(fn16)

The requirement that the misrepresentation be made in the course of representing a client was highlighted in the Kansas case of In re Albin.(fn17) The attorney sent a letter marked as "Legal Mail" to an inmate in a correctional facility, hoping to avoid interception or monitoring. Contraband in the form of stamps or stamped envelopes was found enclosed in the correspondence. The disciplinary hearing panel found the letter, which was of a personal nature, could in no way be characterized as involving legal issues or representation and concluded that the attorney's conduct violated Rules 4.1 and 8.4(c).

However, the Kansas Supreme Court refused to adopt the hearing panel's finding as to Rule 4.1 since the rule requires the prohibited conduct to occur in the course of representation of a client and...