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Even if it enrages the senior partner or undermines the argument, a lawyer is duty-bound to speak up and prevent a judge from getting the wrong impression — on pain of reprimand for lack of candor to the tribunal. That’s the point of the Connecticut Supreme Court’s unanimous opinion in Daniels v. Alander, officially released Tuesday. It makes clear that the rule against making “a false statement of material fact or law” to a judge can be violated without uttering a single word. Writing for the court, Justice Joette Katz said, “[I]t is apparent that the drafters of rule 3.3, which is entitled ‘Candor toward the Tribunal,’ did not intend to limit its application solely to the party actually making the affirmative misstatement. Depending on the circumstances, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.” The case arose from an emergency hearing on Jan. 16, 2001, in the courtroom of New Haven Superior Court Judge Jon M. Alander. Attorney Douglas R. Daniels and his then-associate, Dennis Driscoll, represented a divorced mother, Inez Montalvo, who feared her children would face violence if returned to their father, Felipe Nieves, in New Jersey. The man’s live-in girlfriend had called to urge the mother to keep the children in Connecticut, beyond the New Jersey family court order of weekend visitation. The girlfriend allegedly warned that Nieves had lapsed into cocaine use and violence. Driscoll telephoned Veronica Davis, the client’s New Jersey lawyer, who was awaiting a custody ruling from the New Jersey judge presiding over the couple’s custody trial. While Davis said she thought New Jersey had jurisdiction, she said her preference was that no emergency custody action be brought in Connecticut or New Jersey. Driscoll said she told him it was because she didn’t want to anger Peterson and jeopardize his still-unwritten custody decision. Davis, with reservations, prepared emergency custody papers which she said she was prepared to file — despite her reservations. Driscoll recounted the call to Daniels, who did the talking before Alander. Daniels said, “Mr. Driscoll spoke to counsel in New Jersey and it was her opinion that we should not do it in New Jersey for a number of reasons, none of which I think are flattering to the judiciary there, but we were relying on that.” Alander apparently heard that as a statement of jurisdiction more than strategy. He called the New Jersey judge, and the two agreed to extend the Connecticut visitation for three days on an emergency basis, then to have a hearing in New Jersey. Davis, Montalvo’s New Jersey lawyer, heard about the hearing before Alander and wrote him a scorching letter Jan 30, 2001, saying she clearly told Driscoll she thought New Jersey had jurisdiction. “His representation to Your Honor that I made statements to the contrary is an outrageous lie,” Davis wrote. Alander held a hearing March 16, 2001, with Davis, Daniels and Driscoll testifying. Alander’s ruling concluded that Davis had offered to file in New Jersey, but that Driscoll did not take her up on her offer because Driscoll “believed that Connecticut had jurisdiction and because of [Davis's] reluctance to file an emergency petition.” He ruled that Daniels made a false statement to the court in violation of ethics Rule 3.3(a)(1) and that Driscoll violated the same rule by not correcting Daniels, and that both warranted a court reprimand. Driscoll and Daniels unsuccessfully sought reconsideration and a lighter sanction from Alander, and lost in a split decision at the Appellate Court. Only Driscoll fought on to the Supreme Court, represented by Kenneth A. Votre. Votre argued that rule 3.3(a)(1), by its plain language, only imposed a duty on the lawyer who makes a misstatement. But Katz found that the fact the hearing was ex parte “created an enhanced duty of candor to the trial court, which was wrestling with the threshold issue of whether to entertain the emergency custody application.” Votre had argued against an interpretation that would “put the hired associate in the role of policing his employer.”

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