In particular to this article are a few areas as discussed referencing, fraud, misconduct and deceit.
EC1-1 of the Ethical Considerations states, “A basic tenet of the professional responsibility of lawyers is that every person in our society should have ready access to the independent professional services of a lawyer of integrity and competence.”
Under the Disciplinary Rules, DR 1-102 -Misconduct, states in pertinent part; (A) A lawyer shall not (4) “Engage in conduct involving dishonesty, fraud, deceit, or misconduct.
ABA Rule 3.3 Candor Towards The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Rule 3.3(a)(1) and (3) do not require that the intended audience of the false statement(s) actually relied on the statement to their detriment, as, the offense is complete upon the making of the false statement and materiality, it is not a requirement for disciplinary purpose … any false statement of fact to the court … regardless of whether it is material, is actionable.
Rule 3.4(a) prohibits a lawyer from unlawfully obstructing another party’s access to evidence, unlawfully altering, destroying or concealing a document or other material having potential evidentiary value. See, In re Selmer, 568 N.W.2d 702, 704-05 (Minn. 1997) (suspending lawyer for, inter alia, knowingly offering false evidence during discovery). Lawyers may also face professional discipline and judicial sanctions for engaging in the spoliation, destruction, alteration, falsification or concealment of evidence. See, Loomis v. Ameritech Corp., 764 N.E.2d 658, 662 (Ind. Ct. App. 2002) (defining spoliation of evidence).
The courts have based their decisions on the evidence and therefore the meager assertion regarding a piece of evidence is as much fraud upon the court as it is fraud to the opposing party. See, Pumphrey v. K.W. Thompson Tool Co., 62 F.3d 1128, 1131 (9th Cir. 1995) (classifying lawyer’s failure to disclose evidence during discovery as fraud upon court).
The presentation of false evidence and/or perjured testimony during the course of discovery and other evidence gathering procedures also reflects in Model Rule 3.3(a)(3). Here a lawyer is prohibited from offering evidence he or she knows to be false. See, In re Watkins, 656 So. 2d 984, 984-85 (La. 1995) (suspending lawyer who filed physicians’ reports into evidence knowing that they had been falsely altered), which also covers the testimony presented to a court as evidence. See Rule 3.3 cmt. 6, referring separately to false testimony and false evidence.
The ability of the disciplinary process to serve as a meaningful deterrent to misconduct is questionable at best. See Leslie C. Levin, The Case for Less Secrecy in Lawyer Discipline, 20 GEO. J. LEGAL ETHICS 1, 1 (2007), supra note 42, at 1582. It is noted that during the legal process, judicial sanctions for misconduct by lawyers are far more common than professional discipline. See, Peter A. Joy, The Relationship Between Civil Rule 11 and Lawyer Discipline: An Empirical Analysis Suggesting Institutional Choices in the Regulation of Lawyers, 37 LOY. L.A. L. REV. (2004), supra note 27, at 789-91 (noting relative lack of disciplinary cases involving filing of frivolous motions as compared to imposition of Rule 11 sanctions).