Advice for new attorneys: The false declaration

Let’s say opposing counsel files a declaration in your ongoing civil matter addressing a material issue in the case. That declaration makes false statements – not tactically crafted arguments – that shade the truth, or slippery sentences that imply something that is false. What do you do? It’s perjury, right? It’s unethical, right? And it hurts your case or, perhaps, the perception of your case or that of your client or you before the court, right? What do you do? Report a perjury to the District Attorney? Complain to the State Bar about the obvious ethical violations? Schedule an ex-parte appearance to address it directly with the court? File an opposing declaration pointing out the false statement and ethical violations? Call the attorney with a healthy WTH? What do you do?

Your reaction to this false statement will not only affect your opponent, but also your standing before the court and your client’s interests in the case. It’s complicated, huh?

First, note this is a rare event, one I have come across only a few times in my practice and career as a trial attorney. In my experience, lawyers are overwhelmingly honest and generally don’t knowingly file false statements under oath with the court. Lawyers, as a group, are honest and ethical professionals. Further, even for the rare dishonest lawyer, filing that false declaration could be quite dangerous. It could be a crime. It is unethical. And, if it’s a statement that is material to the case and proven at trial to be false, it could harm the client. It could also result in the lying attorney being a witness in his own case concerning the falsity of the declaration. It might also harm the attorney’s reputation if played out on the record. (That is, assuming the lying attorney has a good reputation to begin with!)

But it does happen and did happen in one of my cases a few years ago. This is how I handled it.

First, I did not call the District Attorney or complain to the State Bar. That seemed too harsh a response and, maybe, an overaction on my part without all the facts. I was angry about the statement and wanted to push back hard. But I took a deep breath (in fact, several) and took a walk (in fact, several) to think it through and decided not to call the cops or call the Bar.

I also decided not to immediately file an opposing declaration addressing the false statement and calling counsel out for the apparent perjury and ethical violations. I really wanted to - really, really wanted to! But I didn’t. Perhaps I was wrong and jumping to conclusions. Perhaps the attorney honestly viewed things the way he stated, perhaps it was just a mistake, a misfiling, who knows? In anger, or in the fast competitive back and forth of modern litigation, we can lose objectivity and presume ourselves into difficult corners. I also did not want to call this attorney out in court unless the statement was undisputedly false and the attorney knowingly filed.

In my experience, trial judges, by nature, presume professionalism, ethical conduct and good faith by the lawyers appearing before them. They don’t like attorneys taking out after each other in filings or in court. They don’t like attorneys name-calling or questioning each other’s ethics. They see it all the time. They don’t like it. And they don’t like calling out unethical behavior or improper conduct by attorneys on the record. They will express their concerns and displeasure about such conduct through more subtle, and off the record avenues – like a chamber’s conference or generalized on-the-record comments. The last thing I wanted was to call out opposing counsel’s false assertions in my own declaration, and then have the Judge view my filing as an overaction and not see my outrage as justified. Better have all the receipts before I call a colleague a liar in open court. Plus, to be honest, it is my nature and, I think, good practice to presume good faith on the part of opposing counsel, unless and until bad faith is clearly established.

I decided that, as a starting point, I would presume good faith and/or a mistake on the part of opposing counsel. Perhaps, the filing was an early draft of the declaration with a template e-signature filed by mistake. We all, at times, put stuff in early drafts that shouldn’t and doesn’t make it into the eventual filing. Who knows? I know the danger of jumping to conclusions.

But I still needed to address the false filing in the case. So, presuming good faith, I needed to contact opposing counsel, address the declaration with him, and, dependent upon his response, determine the appropriate corrective action. It is my nature to just pick up the phone and hash out issues with opposing counsel. This time, I did not. A call would be too confrontational and might back counsel into a corner where a face-saving professional corrective action might have become less likely. After all, if I am presuming good faith as a starting point, I need to give opposing counsel room to correct the presumed error or misfiling.

I sent opposing counsel a lengthy email laying out, frankly and in detail, why the declaration was false. I then advised counsel that if the declaration had been filed by mistake I apologized for my harsh tone and assumed he would immediately correct the error. I then stated that if it was not filed in error, it was quite serious. In that event, I demanded that the false statements be withdrawn or corrected by subsequent declaration and notified counsel that if they were not, I would raise these issues directly with the court with a filing, on the record, the following day. In other words – fix this now and this is over.

What happened? Initially, counsel pushed back hard with an email denying the false statements, explaining, quite unpersuasively, why the declaration was truthful, and claiming bad faith on my part. But then, an hour or so later, he filed a supplemental declaration correcting the prior statements. It was by no means a full mea culpa, but it corrected the declaration and satisfactorily resolved the issue. I presumed the false declaration was filed in error and the issue was closed.

What would I have done if counsel had not corrected the false statement? I would have filed a declaration the next day, as promised, addressed the false statements, called out counsel directly for the perjury and ethical violations, and sought an order striking the declaration and imposing sanctions. I would have had no choice but to proceed, full speed, to address the false statements directly with the court. Depending on how the court would have addressed the issue, and whether the false declaration, after the court’s consideration thereof, still appeared undisputedly false and knowingly filed, I would have strongly considered contacting the State Bar about the ethical violation. Unlike the ABA Model Rules and the rules of many other states, California rules do not impose an obligation on an attorney to report another attorney’s misconduct. So, I would not have been compelled to do so. I would have had to analyze the effect of such a report on my clients interest, and assess, frankly, whether I would have been doing it just because I was pissed off - not a good reason! Frankly, I don’t know what I would have done beyond addressing the issue with the trial judge. It didn’t go any further. It is against my nature to take out after opposing counsel, my colleague..