Randy Evans and Shari Klevens, Dentons partners. ()
As a general rule, attorneys do not make intentional misrepresentations in court. However, even when there is no intention to misrepresent, the conduct and words of attorneys can give rise to sanctions and other risks for their clients and their firms.
Last year, Judge Hanen of the District Court for the Southern District of Texas issued a scathing order criticizing the conduct of several Department of Justice (DOJ) 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 issued a sweeping sanctions order, imposing sanctions against not only those DOJ attorneys directly involved in the case, but also against DOJ attorneys employed in Washington, D.C.
Eventually, upon further review, the court withdrew some of the sanctions based on its conclusion that the misrepresentations were inadvertent. However, this order still made history. Putting aside the political or Constitutional issues raised by the underlying case, there are some ethics lessons that attorneys can learn from this order.
The Client Can Be Punished, Too
Here, the DOJ attorneys, representing the federal government, were once sanctioned for their misconduct. However, the court explored several other possible sanctions as a remedy before rejecting those sanctions as not specifically targeted at discouraging the misconduct or punishing the attorneys.
The court explored, specifically, two other possible sanctions before ultimately rejecting them: dismissal of the case and monetary sanctions. Although the court agreed that it had the power to order dismissal, that was not warranted in this case, given the national import of the litigation.
Second, the court concluded that, in most situations like those at issue, an award of costs would be an appropriate sanction. However, the court rejected that here because the costs would be borne by the government and funded by taxpayers. Thus, the court found that an award of costs would serve to punish taxpayers and would not punish the actual wrongdoers, the attorneys.
Attorneys following this order, therefore, concluded that dismissal or an award of significant monetary sanctions might have been expected in a case that lacked those sort of public concerns. Such sanctions also are significant because they punish the client in addition to punishing the sanctioned attorney.
Indeed, if an attorney makes misleading representations to a court, that can create risks and liability for both the attorney and the client. If a client is aware of that risk, the client may be less likely to push the attorney to take risks in issuing representations to the court. Explaining that risk may also help minimize the likelihood of a successful claim by the client, alleging that the attorney should bear all consequences of a sanctions order.
Risks for the Law Firm
This shows that courts may consider sanctions against other members of a law firm or association, particularly if the court believes the misconduct was a byproduct of the way that firm typically practices. 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.
Err on the Side of Asking
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.
The court eventually backed off its harsh sanctions in part because it concluded that the government attorneys did not act intentionally or in bad faith. The government attorneys additionally argued that the misrepresentations occurred because they did not correctly understand what the court was asking of them.
The lesson for other attorneys it that, 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. Sometimes attorneys worry that asking a court to repeat instructions or provide additional explanation suggests they are unprepared or even obtuse. In light of the potential risks, however, most attorneys would recommend erring on the side of caution and seeking clarification. An attorney otherwise may face great risk at presenting information to the court that is imprecise, incorrect or nonresponsive.
Relatedly, attorneys 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.
Importantly, 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 great risk comes when attorneys make representations without bothering to discuss with their client or to review the relevant information.
Attorneys seeking to minimize their risk should respond carefully and cautiously to any inquiries received by the court.