Lawyers should not take the client’s verification if they can avoid it.

I am an attorney who does a fair amount of personal injury litigation. I noticed the plaintiff’s attorney took the verification on answers to new matter and also the verification on the complaint. Is that ethical?

The answer to the question is that it may not be ethical, but, more importantly, it may not be a wise practice. Sometimes a lawyer, because of deadlines and the client’s unavailability, whether the client is in prison or away on a trip, has to take the verification. But the lawyer certainly should have the client’s permission to do so, and then substitute the client’s verification as soon as the client is available. That can be done by a simple praecipe to substitute. When the lawyer signs the verification, he or she should specifically put in the verification that the client is not available and that the lawyer has the client’s consent to do this pending the client substituting his or her verification.

When there is not the extreme circumstance, the lawyer should not take the verification. The client should take the verification. The lawyer has to swear to personal knowledge and the lawyer’s knowledge normally is not personal knowledge but what is given to the lawyer by the client.

The problem with taking the verification is that the lawyer may waive attorney-client privilege. If the lawyer is verifying this, then the lawyer could be called at a deposition and asked what the client said, which would form the basis for the verification. Such a waiver could be devastating, particularly because the opposing attorney may have the right to get what would otherwise be clearly confidential and privileged documents. If a privilege is waived, then it is gone forever.

Further, by signing the verification, there is nothing that precludes the defense lawyer or the opposing counsel from taking the lawyer’s deposition. The lawyer obviously is going to vehemently protest and claim it is unfair, but the lawyer has placed him or herself as a fact witness with personal knowledge. In other words, it creates a dangerous situation where the lawyer may be conflicted out of a case, may end up as a witness during trial and/or may waive the attorney-client privilege.

Therefore, there is no reason to take the verification except in those extreme circumstances where the client is literally not available and there is a deadline that has to be met.

The practice of law has become so fast-paced that this practice of lawyers signing the verification is becoming more common than one would like to think. But that doesn’t make it right. Lawyers who practiced when affidavits were required on pleadings (pre-1979) will remember that many times clients would sign affidavits early on, but the lawyer would then attach them to whatever pleading and have the secretary notarize it. That was a very dangerous practice and, at one point, the disciplinary board suggested that lawyers who did that could be suspended for a number of months. That practice disappeared once verifications were allowed, as opposed to affidavits.

The use of a verification with the lawyer now signing it is very ill advised. As noted, this could allow a waiver of the Rules of Confidentiality under Rule 1.6, but also create the situation where a lawyer is a witness and may be disqualified under Rule 3.7. Also, to some extent, it is just unseemly for a lawyer to verify personal statements of facts that only the client would know. The lawyer has to be the advocate, not an independent witness. The lawyer does not want to be someone whose credibility could be challenged.

Therefore, the answer to the question is it is a very foolish practice for the lawyer to do a verification except under the most extreme circumstances. If a lawyer does the verification, the lawyer must qualify it and seek to replace it immediately as soon as the client is available.

More importantly, when a lawyer takes a verification, particularly to a document such as a complaint, the lawyer opens him or herself up to many questions and to collateral issues of waiving the privilege and/or being a witness, etc. It is hard enough to practice law without having to fight those side issues. Therefore, the bottom line is lawyers should not take the verification if humanly possible. If the lawyer does, the lawyer should be aware of the potential consequences.

Supervising lawyers can be responsible for the actions of associates.

I am an attorney who supervises several associates in a medium-sized law firm. In working with one associate, it has come to my attention that the associate misrepresented something during a deposition. What obligations do I have as a supervising lawyer in the firm?

Obviously, one of the worst things a lawyer can do is to misrepresent something intentionally. Under Rules of Professional Conduct 4.1 and 8.4(c), misrepresentation or deceit or fraud are serious disciplinary violations that can cause a loss of license. In extreme circumstances, they can result in disbarment. A lawyer has to be honest. That is the bedrock principle for all members of the bar. Honesty has to be the trademark of every lawyer.

If a misrepresentation was made, it has to be corrected. Whether it was unintentional or intentional, once it is known, it has to be corrected under Rule of Professional Conduct 3.3(a).

The question becomes whether the supervising attorney also has an obligation also. The answer is clearly yes.

Under the Rule of Professional Conduct 5.1, partners, managers and supervisory lawyers have certain responsibilities and can be vicariously responsible for misconduct by those they are supervising if known and not corrected.

Under Rule 5.1, all supervisory lawyers have to make reasonable efforts to ensure that the lawyers they supervise act according to the Rules of Professional Conduct. Under Rule of Professional Conduct 5.1(c), a lawyer supervising another lawyer can be responsible for the lawyer’s violation of the rule if the lawyer is aware of it or orders it or ratifies it. The supervising lawyer can also be responsible if he or she learns of the misconduct, particularly when it can be remedied, but takes no remedial action.

Comment 5 to Rule 5.1 clearly notes as follows:

"Thus, if a supervising lawyer knows that a subordinate misrepresented the matter to an opposing party in negotiation, the supervisor, as well as the subordinate, has a duty to correct the resulting misrepresentation."

Therefore, it is as clear as a bell that the supervising lawyer has duties to correct or take remedial action any time he or she becomes aware of ethical violations by an associate that go to issues of honesty and trustworthiness. Managing partners of a firm have similar obligations if they become aware of the same.

These responsibilities are why it is so important for firms to have an in-house ethical expert or a committee where supervising lawyers and/or associates can go and ask questions as to their professional responsibilities. Clearly, it is better if the lawyer can go anonymously, because many younger lawyers particularly do not want to go and criticize the partner they are working with. But if they can go with confidentiality, then these issues can oftentimes be resolved before there is a major problem.

To answer the question, supervising lawyers and managing partners, under certain circumstances, can be responsible for the actions of associates. That is why it is important to have good ethical responsibility training for all new employees and it is also important that the supervising lawyers actually do their supervising duties. These duties are more important than to just protect the client, although that is obviously of great importance.

Fulfilling these supervisory responsibilities is actually another way to train and educate lawyers who are going to be the next generation. There is nothing more important than a lawyer aiding and mentoring younger lawyers. To do that, at times a lawyer has to correct the mistakes and correct them publicly. 

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.