United States: Attorneys Must Be Precise In Representations To Court

On May 19, Judge Andrew Hanen of the US District Court for the Southern District of Texas issued a scathing order criticizing the conduct of several Department of Justice attorneys defending the federal government against a suit brought by a group of 26 states. The court found that the attorneys representing the DOJ made several misstatements of fact in response to inquiries from the court during hearings and in pleadings regarding the government's compliance with prior orders or rulings.

The court found that the DOJ attorneys violated their duty of candor by "making statements that clearly did not match the facts." The court, in a 28-page opinion, issued sanctions not only against those DOJ attorneys involved in the case (revoking their pro hac vice status), but also against all DOJ attorneys employed in Washington. The court also required the DOJ attorneys to provide additional information regarding the government's actions that had purportedly been misrepresented by those attorneys.

This order has been the subject of much discussion, not only because it has potential political implications but also because the sanctions ordered were so widespread and severe. Without addressing the political or constitutional issues raised by the underlying case, there are some ethics lessons that attorneys can learn from this order.

An attorney's conduct can affect the client

The DOJ attorneys, representing the federal government, were sanctioned for their misconduct. However, the court explored several other possible sanctions as a remedy before rejecting them as not specifically targeted at discouraging the misconduct or punishing the attorneys.

The court explored two possible sanctions before rejecting them: dismissal of the case and monetary sanctions. The court noted that its inherent power and the "egregious conduct" of the attorneys supported dismissal, but that because the litigation had "national importance" and because the Supreme Court is considering the merits of the litigation, dismissal was not warranted.

Second, the court found that an award of costs would be an appropriate remedy in most situations, but not here because the costs would be borne by the government and, ultimately, the taxpayers. The court found this would be an unfair burden on taxpayers and would have "no corrective effect" on the misconduct.

It appears, therefore, that had similar conduct occurred in a case without such special circumstances, striking of the pleadings or an award of monetary sanctions would have been supported and likely awarded. These are serious sanctions that go beyond directly punishing the offending attorney to also punish the client.

Attorneys should be aware and counsel their clients that the representations that they make to a court on behalf of the client could create risks for them both. Advising the client of that risk in advance may minimize the likelihood that a client pushes an attorney toward a risky approach. It also minimizes the likelihood of a successful claim by that client against the attorney if the worst case scenario happens and the court awards sanctions.

An attorney's conduct can affect the firm

One sanction ordered by the court is for all attorneys at the DOJ's home office who appear or seek to appear in any court in any of the 26 plaintiff states to take three hours of ethics courses every year for the next five years. This is a sanction that is expanded beyond just those attorneys accused of unethical conduct—it includes attorneys who have never set foot in Judge Hanen's courtroom.

This sanction punishes an entire group of lawyers for the deliberate misconduct of a few members of that group. Attorneys should be aware that, by their own conduct, they may be exposing other members of their firm to potential sanctions.

If a court believes that attorney misconduct is intentional or that it is a result of culture at a firm that condones or even facilitates misconduct, the other attorneys at the firm could also be subject to sanctions. It can put the offending attorney in a difficult position to have to explain to her or his colleagues why they have to report for CLE training when they were technically innocent of the injurious conduct.

Given the potential ramifications, if an attorney has concerns regarding whether the client can comply with a court's order or whether the attorney is able to make certain representations to the court, the attorney may consider seeking the advice of in-house counsel or even outside ethics counsel.

Always seek clarification

The government attorneys argued, in part, that they did not fully understand what was being asked of them and that they did not intend to mislead the court. The court, on the other hand, felt that the questions asked of the attorneys were clear and that the attorneys' responses must have been intentional misrepresentations.

Regardless of whether the attorneys intentionally or mistakenly responded to the court's inquiry, the lesson for other attorneys is to attempt to avoid ambiguity at all costs. When a court asks an attorney to represent a fact or a position, the attorney should ensure that he or she understands precisely what the court is asking. Although some issues arise even when there is no ambiguity or confusion, asking the right questions may minimize the likelihood that a pleading or statement contains misstatements of fact. The risks are too great otherwise.

Some attorneys may be concerned that asking for clarification or further instruction reflects poorly on them or suggests to the court (however unfounded this may be) that they are unprepared or even unintelligent. Given the high stakes, however, it is always better to err on the side of caution and request clarification than to risk presenting information to the court that is imprecise or unsupported.

Attorneys also should take care when making representations to the court. For example, some attorneys have found themselves in hot water by making a personal representation to a court on an issue of discovery or document preparation such as that the client has not destroyed any documents or that the client has searched the relevant folders for responsive materials - that turns out not to be true.

It is reasonable for attorneys to rely on the representations of their clients, and attorneys cannot be expected to know in all instances whether what they are being told is true. The key is to ask the right questions so that an attorney can then reasonably rely on the information provided by the client in response.

The impact of the DOJ sanctions order in practice remains to be seen. However, courts are taking the role of attorneys as officers of the court very seriously. Attorneys seeking to minimize their risk should respond carefully and cautiously to any inquiries received by the court.

Dentons is the world's first polycentric global law firm. A top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm is committed to challenging the status quo in delivering consistent and uncompromising quality and value in new and inventive ways. Driven to provide clients a competitive edge, and connected to the communities where its clients want to do business, Dentons knows that understanding local cultures is crucial to successfully completing a deal, resolving a dispute or solving a business challenge. Now the world's largest law firm, Dentons' global team builds agile, tailored solutions to meet the local, national and global needs of private and public clients of any size in more than 125 locations serving 50-plus countries. www.dentons.com.

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