South Carolina Lawyer
SC Lawyer, July 2007, #4.
South Carolina LawyerJuly 2007Tangled WebsBy John FreemanThe great Scottish poet Sir Walter Scott used memorable imagery when he observed in his poem Marmion, "O, what a tangled web we weave, When first we practise to deceive!" Sir Walter got it right. So did New Hampshire's Supreme Court when, in Astle's Case, 134 N.H. 602, 606, 594 A.2d 167, 170 (1991), it said, "No single transgression reflects more negatively on the legal profession than a lie." Look no further than two recent, related Florida Supreme Court disciplinary cases for proof that big case litigation is fertile breeding grounds for lawyer deception.
Lawyer fraud in litigation can take different forms. Lawyers can lie to each other, as when they try to cheat over discovery. They can also seek to mislead the court. They may try to mislead their own clients and, if attacked ethically for having done so, they may seek to mislead disciplinary authorities. In the Florida cases, the respondent lawyers were involved in all of the above, and violated a number of other ethical rules to boot. The cases are Florida Bar v. Rodriguez, ___ S.E.2d ___, 2007 WL 1285820 (Fla. May 3, 2007), and Florida Bar v. St. Louis, 2007 WL 1285836 (Fla. May 3, 2007). Both lawyers were in the same plaintiffs' firm, and both were caught up in a common fraudulent course of conduct. The facts below are taken principally from the St. Louis decision.
In the early 1990s, Florida farmers were hit with two disasters decimating their crops. The bigger one was Hurricane Andrew. The other was less publicized and less well known. It centered on losses resulting from farmers' use of a defective fungicide manufactured and sold by DuPont called Benlate. When cases first arose in the early 1990s, DuPont paid Benlate claims up to a reported $500 million. It then denied liability based on testing it conducted that supposedly demonstrated Benlate was safe.
The lawyers in Rodriguez and St. Louishad a total of 20 combined Benlate cases against DuPont. Litigating the cases was hard. The court in St. Louis noted, "DuPont vigorously defended itself with carefully calculated strategies and 'scorched earth' discovery tactics." This scorched earth approach evidently involved hiding evidence. DuPont's "scorched earth"...