Randy Evans, left, and Shari Klevens, right. (Courtesy photos)
Everyone makes mistakes, but when attorneys misstate facts in court the ramifications may be serious for themselves, their clients and their firms.
On May 19, 2016, Judge Andrew 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, 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, D.C. The court also required the DOJ attorneys to provide additional information to the court regarding the government’s actions that had purportedly been misrepresented by those attorneys.
This order has been the subject of much discussion since it was issued because the sanctions ordered were so widespread and severe. Although Judge Hanen eventually determined that the government’s misrepresentations were not made intentionally or in bad faith and walked back some of the sanctions, this order still made history. 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 Impact the Client
Here, the DOJ attorneys, representing the federal government, were sanctioned for their misconduct. However, the court at first 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. The court noted that its inherent power and the “egregious conduct” of the attorneys supported dismissal, but that because the litigation had “national importance,” 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, citizen taxpayers. The court found this would be an unfair burden on taxpayers and would have “no corrective effect” on the misconduct.
It appears from the court’s order, therefore, that had similar conduct occurred in a case without such special circumstances, striking of the pleadings or an award of monetary sanctions might have been awarded. These are serious sanctions that go beyond directly punishing the offending attorney but also punish the client.
Attorneys can take steps, therefore, to counsel their clients that the representations that the attorney makes 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 Impact the Firm
One sanction ordered by the court was for all attorneys at the DOJ’s home office who appeared or sought 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 sanction punished an entire group of lawyers for the misconduct of a few members of that group. Similarly, attorneys engaged in misconduct 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 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
In this case, 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 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 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.
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 may be better to err on the side of caution and request clarification than to risk presenting information to the court that is imprecise or unsupported.
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.
However, 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.
This DOJ sanctions order shows that courts are taking the role of attorneys as officers of the court very seriously.