Lawyer's Responsibility With Relation To Client Perjury

By H. Gosh

The American Bar Association, and the various State Bar Associations of the United States of America has very definite rules concerning the duty of lawyers with regard to representation of their clients and their knowledge of their clients perjuring themselves.

Perjury is defined as “1) a false statement, under oath; (2) a statement made with the intent to deceive; (3) a false statement made during or in connection with an official proceeding; and (4) a false statement that is material. Or (1) that a statement was made, under oath, that confirmed the truth of a false statement previously made and the statement was required or authorized by law to be made under oath; and (2) that the statement was made with the intent to deceive; and (3) that the false statement was made during or in connection with an official proceeding; and (4) that the statement was material. Or: (1) that a false statement was made, not under oath, but on an official document required or authorized by law to be made under oath and stating on its face that a false statement is subject to the penalties of perjury; and (2) that the statement was made with the intent to deceive; and (3) that the false statement was made during or in connection with an official proceeding; and (4) that the false statement was material.

"Statement" means any representation of fact.

"Oath" means a solemn and formal undertaking to tell the truth.

"Intent" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.

"Official proceeding" means any type of administrative, executive, judicial, or legislative proceeding that is conducted before a public servant authorized by law to take statements under oath in that proceeding.

"Material" means the statement, irrespective of its admissibility under the rules of evidence, could have affected the course or outcome of the official proceeding.

Now, if, during the course of a foreclosure proceeding, a lawyer learns that the client (in our case, the OWL or Fairbanks Capital) intends to testify falsely before a tribunal, the lawyer must advise the client against such course of action, informing the client of the consequences of giving false testimony, including the lawyer's duty of disclosure to the tribunal. If the lawyer knows, from the client's clearly stated intention, that the client will testify falsely, and the lawyer cannot effectively withdraw from the representation, the lawyer must either limit the examination of the client to subjects on which the lawyer believes the client will testify truthfully; or, if there are none, not permit the client to testify; or, if this is not feasible, disclose the client's intention to testify falsely to the tribunal. This would apply to the fact that the OWL consistently initiates foreclosure proceedings when a mortgage is not truly in default. Under this ruling, the testimony, statements, documents, etc., pertaining to this perjury is not admissible, the attorneys for the OWL cannot present this information in a court of law, and in effect, eliminates the entire basis for foreclosure.

The Utah State Bar Ethics Advisory Opinion Committee Opinion No. 00-06 (Approved September 29, 2000) states in part: “…Counsel who knows that a client has materially misled the court may not remain silent and continue to represent the client; to do so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court. The American Bar Association’s Committee on Professional Conduct In ABA Formal Opinion 87-353, stated that “In compliance with Model Rules 3.3(a) and 3.3(b) It is now mandatory for a lawyer who knows the client has committed perjury, to disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury.” That opinion considered the same facts presented here: “judge asks the defendant whether he has a criminal record and he falsely answers that he has none.” The opinion states, “Where the client has lied to the court about the client’s criminal record, the conclusion of Opinion [decided in 1953 under the 1908 Canons of Professional Ethics] that the lawyer is prohibited from disclosing the client’s false statement to the court is contrary to the requirement of Model Rule 3.3. This rule imposes a duty on the lawyer, when the lawyer cannot persuade the client to rectify the perjury, to disclose the client’s false statement to the tribunal . . . .” The ABA goes on further to state “We agree that a lawyer who knows that a client has materially misled the court but remains silent and continues to represent the client is “assisting a criminal or fraudulent act by the client”

The Rule finally promulgated in the current Model Rules of Professional Conduct rejects any participation or passive role whatever by counsel in allowing perjury to be presented without challenges. The essence of the brief amicus of the American Bar Association reviewing practices long accepted by ethical lawyers is that under no circumstance may a lawyer either advocate or passively tolerate a client’s giving false testimony.

Counsel may not affirmatively or passively mislead the court by allowing the court to rely on information that counsel knows to be untruthful. Specifically, counsel may not remain silent when counsel is aware that the client has misled the court in some material fashion. “The attorney’s duty, as an officer of the court, is to uphold the legal process and demonstrate respect for the legal system by at all times being truthful with a court and refraining from knowingly making [or permitting] statements of fact or law that are not true.”

It is difficult to imagine how remaining silent and continuing to represent the client is not “assisting” a client who has misled the court. Neither the U.S. Supreme Court nor the ABA Model Rules approve of the narrative approach in perjury situations because the lawyer is nevertheless assisting the client, albeit passively, in perpetrating a fraud on the court. The distinction is not whether the client is under oath, but whether counsel is assisting. Counsel who continues to represent the client knowing that the client has misled the court is, either passively or affirmatively, “assisting” the client by not bringing the falsehood to the attention of the court.

The American Bar Association Rule DR 1-102 Misconduct states:

(A) A lawyer shall not:

(1) Violate a Disciplinary Rule.

(2) Circumvent a Disciplinary Rule through actions of another.

(3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.

(5) Engage in conduct that is prejudicial to the administration of justice.

(6) Engage in any other conduct that adversely reflects on his fitness to practice law.

The American Bar Association Rule DR 1-103 Disclosure of Information to Authorities further states:

(B) Mandatory withdrawal. A lawyer representing a client before a tribunal,… shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if:

(1) The lawyer knows or it is obvious that the client is bringing the legal action, conducting the defense, or asserting a position in the litigation, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

(2) The lawyer knows or it is obvious that continued employment will result in violation of a Disciplinary Rule, or if:

(1) The client:

(a) Insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.

(b) Persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent.

(c) Insists that the lawyer pursue a course of conduct which is illegal or prohibited under the Disciplinary Rules.

(e) Insists, in a matter not pending before a tribunal, that the lawyer engage in conduct which is contrary to the judgment and advice of the lawyer but not prohibited under the Disciplinary Rules.

(g) Has used the lawyer's services to perpetrate a crime or fraud.

Now, how does this apply to the OWL, you may ask? Well, we all know that the majority of the foreclosures initiated by the OWL is based on false information, and that false information (i.e., the illegal holding of mortgage payments until they are “late”, the deduction of extraneous “fees” prior to applying the mortgage payment to principal and interest, thus making any and all subsequent mortgage payment “inadequate” to cover the monthly amount mandated by the “note”) the refusal to furnish account history information in a timely fashion, as mandated by law, the refusal to give a payoff amount in a timely fashion, as mandated by law, the failure to notify homeowners of pending foreclosure proceedings, the failure to accept monies to bring mortgages current, is illegal. The attorneys, acting on behalf of the OWL know, or should know, that the information, statements, affidavits, etc., submitted to initiate foreclosure is PERJURY, and they, according to the Disciplinary Rules of the American Bar Association, are subject to disciplinary action if they do not avail themselves of the remedies set forth in the American Bar Association Model Rules 3.3(a) and 3.3(b).