81st Installment. Loyalty to Client versus Candor with Court: Client Perjury and Related Bugbears

Officer-of-the-court jurisprudence—ethics that take seriously some lawyers’ self-important belief that they’re “officers of the court”—has been the most divisive issue among legal ethicists since the ABA’s 1908 promulgation of the Cannons of Professional Ethics. Where loyalty to client is pitted directly against duty to court, consensus dissolves, as it does concerning managing client perjury: one jurisdiction mandates practices another rejects as unethical. For decades the rule that a lawyer commits misconduct when he allows his client to commit perjury has been the most heated topic debated in law-school "professional responsibility" classes, but debate hasn't produced consensus. For adherents of officer-of-the-court jurisprudence, the issues are candor with the court and facilitation of crime. For adversarial lawyers, anointing lawyers agents of the court—duty bound to screen clients for truthfulness before the jury takes its turn—smacks of the Star Chamber, where lawyers were empowered to prejudge their clients' credibility and burdened with responsibility for their clients' lies. (A. Sterling, Truth, Justice, and the American Way: The Case against the Client Perjury Rule (1994) 47 Vand. L. Rev. 339.)

The threatening ascendancy of officer-of-the-court jurisprudence erodes lawyers’ loyalty to clients to where both bar courts and respondents don’t even notice client-centered ethical issues, in the following example, confidentiality. Consider the following as if it were a hypothetical on a Professional Responsibility exam; we’ll call it hypothetical because incidental facts have been changed to avoid identifying respondent attorney:

Attorney, having exhausted the allowed extensions of time, is late in filing an appellate brief. Attorney deceptively backdates the document, which the clerk mistakenly files. Attorney denies the backdating when opposing counsel challenges him, but before the court rules, attorney admits the deception. The court strikes attorney’s brief, causing attorney’s client to lose the appeal. After opposing counsel files a professional-discipline complaint, what culpability should the state bar find?

Neither the bar court nor the respondent recognized the confidentiality issue: the state bar treated the breach of client confidentiality as mitigating the deception's culpability, respondent as exonerating that offense's commission. Any second-year student who doesn’t find an issue of breach of client confidentiality in the hypothetical should fail the exam. But lawyers? However ethically serious they consider petty deception of the judiciary or however unseemly they consider baseless intransigence, lawyers should be unanimous on the case’s central ethical issue: should attorney unmask his own deceit? The answer should be a resounding No! Every lawyer must understand the most basic ethical premise of law practice: lawyers don’t fink on clients; despite many jurisdictions’ requiring it, ethical lawyers refuse even to report clients intending perjury. (A. Sterling, supra at p. 423, fn. 311 [anonymous survey of the District of Columbia bar revealed that 90% of those surveyed would call the perjurious criminal defendant to the witness stand and conduct the defense as if the client had testified].) Every lawyer should understand that legal representation is an agency relationship, where his client’s case may suffer if the court discovers attorney’s transgressions. (See J.A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court" (2000) 48 Buff. L. Rev. 349 [centrality of agency law in governing American lawyers since the Revolution].) Attorney sacrificed his client’s interests for personal moral purity—or for expected and received mitigating consequences.

Attorney’s knowledge that his filing was untimely is privileged because attorney acquired the information in the course of representation, but officer-of-the-court jurisprudence hugely distorted both parties’ ethical understanding. The state bar and respondent assumed the existence of duties to the court overshadowing client loyalty. They differed only in the state bar’s regarding the retraction as mitigating attorney’s lack of candor, while attorney regarded it as complete excuse—although attorney rectified his acts of deception by committing a worse ethical transgression, sounding in breach of confidentiality. Cleansing an attorney’s soul of guilt at a client’s expense sacrifices the client’s interests to the attorney’s no less than betraying a client for money. Between deceiving the court and undermining his client by disclosure, the uncharged disclosure of the filing date’s falsification is the severer transgression.

All fundamental legal rights depend on attorneys' performing their duty of loyalty to clients. The right to be heard withers without attorneys who loyally represent their clients, and the tyranny of lawyers’ morality oppresses more than does ordinary corruption: from Watergate to the torture memos, moral ideology rather than personal profit motivates the greatest lawyerly crimes. While absence of due process in the bar courts rebuts calls for harsher penalties, discipline is lax for lawyers who excuse their disloyalty because they subject clients to conscientious dictates, not greedy appetites. Contrast attorney’s actual suspension for less than six months to the two-year suspension a state-bar court imposed on a lawyer lacking moralistic self-justification for deceiving a federal court about filing dates.

Interlude 19. California Supreme Court denies Philip E. Kay’s petition to review 3-year mandatory suspension

As kanBARoo court reluctantly predicted, the California Supreme Court ignored the substance of Philip E. Kay's petition for writ of review, issuing its standard boilerplate denial. Kay must now decide whether to move for rehearing. He should file a radically succinct motion for rehearing, containing no more than fifteen pages—ten is better—focusing exclusively on the most compelling and certain issues. Unquestionably, the Supreme Court will deny it, but Kay will have made the clearest possible record.

Interlude 18. Judicial Narcissism versus Justice: the Melvin H. Hoffman Matter

During a phone conference, family-law litigator Melvin Hoffman called a judge a "narcissistic, maniacal, mental case." The judge reported Hoffman to the Illinois state bar, resulting in a six-month suspension, and the judge drew ridicule, even from within the state-bar establishment (see Monroe Freedman's comment). The Illinois state bar's conduct is unsavory, not only because of the infraction's pettiness but also because of prosecution in bad faith, reviving long-abandoned charges, one a decade old. From review of the ABA discussion board, one conclusion is certain: lawyers and the public—following numerous exposures—will no longer presume they should respect undeserving judges; but the legal and ethical underpinning of a critical attitude toward judges lags.

Many commenters (e.g., Comments #39 and #81) applauded Hoffman's ethics, but state-bar ideology isn't quite dead. One commenter (#10) came close to admitting that irrational, automatic public respect for courts is what's at stake, but the most repugnant argument for mandatory respect was the hypocritical claim that Hoffman's conduct was prejudicial to his client. These critics' (#33, #21, #58, and #92) readiness to second-guess Hoffman shows this is not good-faith criticism. Even the most sophisticated of these comments (#38), which pointed out that confronting a narcissist with his diagnosis predictably causes an outburst of narcissistic rage, refused to acknowledge that the injustice might have gone far enough that the incident's publicity was the only remedy or that elicitation of the judge's expected narcissistic rage was the only tactic exposing the judge as a megalomanic narcissist. (See "Installment 22: Can you tell victory from defeat?") To demand Hoffman explain his tactical reasoning ignores his work-product privilege. This was no episode of "snapping," Hoffman having written the judge to reiterate and elaborate his insights.

The lack of legal sophistication in the comments shouldn't surprise given the low level of legal coherence cultivated by a nationwide state-bar establishment that has eliminated real legal contention in ethics. The legal and ethical naivete underscores the importance of looking to other state-bar cases to build a cumulative case against the state-bar courts, and this means looking across jurisdictional lines, since the state-bar courts are similar across the land. Confusion dominated the discussion of courtroom free-speech rights. Hoffman's critics relied on the half-truth that attorneys in court lack free-speech rights, but Hoffman's supporters also erred, if in a less pernicious fashion, by simplistically affirming that ordinary free speech rules favoring the speaker applied. When an attorney represents a party, restrictions on the attorney's speech aren't measured by the attorney's free speech rights but by his client's equally exacting first-amendment right to petition. While the Hoffman supporters were formally wrong in claiming Hoffman's free-speech rights (#21), they recognized a first-amendment issue. Any restriction on an attorney's right to speak relevant truth defeats his client's right to petition. The burden of proving falsity falls on the judge or bar prosecutor, whereas the Illinois bar court assumed Hoffman culpable unless he proved his accusation.

The conspicuous weakness in Hoffman's supporters was their general failure to distinguish this act of state-bar oppression from ordinary court-imposed sanctions or contempt findings. Hoffman's critics understood a distinction in the opposite sense that duty requires attorneys to demonstrate compliance with higher standards than laymen, but that's a miserable debater's point: "respect for the court," while theoretically a higher standard, is vaguer, hence harder to prove, than the standards for contempt or other sanctions. For a judge to report a lawyer to the bar courts without citing him for contempt or issuing any sanction is so craven it immediately inculpates the judge in some foul play. The judge bypassed the rigorous criteria for contempt and monetary sanctions in the courts of record by avoiding those courts and forum shopping a softer adjudicator.

Any state-bar discipline for courtroom behavior imposes a penalty far more onerous than the courts, as even a public reprimand often ends an attorney's career. The difference in punishment between lawyer and nonlawyer for courtroom behavior is so wide, it affronts the lawyer's and his client's equal protection of the law.