In Re Forrest

Facts

IN RE FORREST

730 A.2d 340 (1999)

NATURE OF THE CASE: Forrest (D) appeared on an order to show cause why disciplinary action under R.P.C. 3.3(a)(5), 3.4(a), and 8.4(c) should not be taken as recommended by the Disciplinary Review Board.

FACTS: D was retained by Robert and Mary Ann Fennimore, husband and wife, to represent them in a personal injury action resulting from an automobile accident in which they were both injured. D filed a complaint against the driver of the other vehicle. Between April 1993 and December 1993, Robert Fennimore died for reasons unrelated to the accident. Mrs. Fennimore informed D of her husband's death. Knowing of the death, D served unsigned answers to interrogatories on his adversary, Christopher Walls, Esq. Neither the answers nor the cover letter indicated that Robert had died. D and Mary Ann appeared at a mandatory automobile arbitration proceeding. D also told Mary Ann that she should not voluntarily reveal her husband's death. When asked about Robert's absence, D replied that he was 'unavailable.' The arbitrator entered awards in favor of both Robert and Mary Ann. Following the arbitration, Walls propounded several requests to produce Robert for a medical examination. D did not reply to those requests and Walls filed a motion to compel. The court entered an order requiring Robert to appear for an examination. D again contacted Walls to discuss a settlement. D did not disclose the death. Eventually, D informed Walls when Robert failed to appear for the court-ordered medical examination. D claimed that he acted only out of a desire to enhance the recovery for his clients. D also argued that he made no misrepresentations throughout the matter but merely withheld certain information. D described his actions as 'bluffing' and 'puffing.' The DEC (P) found that D violated the Rules of Professional Conduct 3.3(a)(5) (failure to disclose material fact to a tribunal); RPC 3.4(a) (obstructing a party's access to evidence of potential evidentiary value); and RPC 8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation). P recommended a reprimand. Disciplinary Review Board (DRB) held that a three-month suspension was appropriate. The Supreme Court issued an order to show cause why respondent should not be disbarred or otherwise disciplined.

ISSUE: Does an attorney's affirmative duty to zealously represent a client's interests trump the duty of candor and frankness an attorney owes to the court and opposing counsel?

RULE OF LAW: An attorney's affirmative duty to zealously represent a client's interests does not trump the duty of candor and frankness an attorney owes to the court and opposing counsel.

HOLDING AND DECISION: (Per Curiam) Does an attorney's affirmative duty to zealously represent a client's interests trump the duty of candor and frankness an attorney owes to the court and opposing counsel? No. An attorney has an affirmative duty to zealously represent a client's interests. An attorney also owes an affirmative duty of candor and frankness to the court and opposing counsel. D withheld the material fact of Robert's death from the arbitrator, and the fact that the violation occurred before an arbitrator as opposed to a court does not render the rule inapplicable. D obstructed opposing counsel's access to potentially valuable evidence by failing to inform him that Robert was deceased. D engaged in  dishonesty, fraud, deceit or misrepresentation. A misrepresentation to a tribunal is a most serious breach of ethics because it affects directly the administration of justice. Misrepresentation of a material fact to an adversary or a tribunal in the name of 'zealous representation' never has been nor ever will be a permissible litigation tactic. A lawyer shall not knowingly make a false statement of material fact or law to a tribunal nor fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. D's proffer to the arbitrator that Robert was 'unavailable' for the arbitration hearing was nothing less than a concealment of the material fact. D obstructed opposing counsel's access to potentially valuable evidence, in violation of RPC 3.4(a). D should be suspended from the practice of law for six months.

LEGAL ANALYSIS: You can also make another rule of law that D owned the duty of candor and honesty to the arbitrator as well because arbitration is all part of the system of justice in the country. 

A small excerpt from Dean’s Law Dictionary (www.deanslawdictionary.com): Lawyers, who serve as officers of the court, have the first line task of assuring the integrity of the process. Each lawyer undoubtedly has an important duty of confidentiality to his client and must surely advocate his client's position vigorously, but only if it is truth which the client seeks to advance. The system can provide no harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end. It is without note, therefore, that we recognize that the lawyer's duties to maintain the confidences of a client and advocate vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of deceit. See 1 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering 575-76 (1990) ('Where there is danger that the tribunal will be misled, a litigating lawyer must forsake his client's immediate and narrow interests in favor of the interests of the administration of justice itself.').

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Issues

Rule of Law

Holding and Decision

Legal Analysis

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