The Lawyer's Duty to Check Facts

As published in New York Law Journal February 9, 2015

Ethics and Criminal Practice The Lawyer's Duty to Check Facts

By Joel Cohen, New York Law Journal

hecking the water's depth before jumping in is always a good strategy. But it's an C especially key strategy—indeed, imperative—for litigating attorneys. It's been 26 years since a special grand jury concluded that Tawana Brawley's allegation that she was the victim of a sexual attack by several law enforcement officials was a fabrication. And, more important here, the then-Attorney General, in referrals to disciplinary committees, alleged that two lawyers ostensibly acting on Brawley's behalf, Alton H. Maddox, Jr. and C. Vernon Mason, "made false statements of fact under circumstances indicating that they knew the falsity of their statements, 'deliberately closed [their] eyes to the facts that they had a duty to see…or recklessly stated as facts things of which [they were] ignorant.'"1

It is astonishing how far these lawyers (aided by Rev. Al Sharpton) went in making these allegations. The Attorney General alleged that one or both of them said that they had "direct evidence" that a particular assistant district attorney was involved in the assault; that a police officer whom they alleged participated in the assault was murdered because he was about to confess; that Brawley identified "several" of the attackers in interviews with law enforcement; that the governor appointed the Attorney General to investigate in order to cover up the assault; that hospital employees tampered with and destroyed the rape kit; that the governor tried to set up Sharpton for assassination; that the Attorney General never provided medical

Joel Cohen, a former prosecutor, is of counsel at Stroock & Stroock & Lavan where he practices white collar criminal defense law. He is an adjunct professor at Fordham Law School. His book, "Blindfolds Off: Judges on How They Decide," was published by the ABA in August. Dale J. Degenshein, special counsel at Stroock, assisted in the preparation of this article.

evidence to the grand jury; and that there was a mafia link between the governor and the accused ADA.2

The conduct of these lawyers in making such allegations—whether based on disclosure from a client or not—is virtually unprecedented. They are no longer able to practice law.3 But in the process, they created a media storm and tarnished the reputations of many good people.4

Rules of Professional Conduct

A lawyer cannot, as was alleged in Brawley, knowingly make false statements of fact.5 And the Rules of Professional Conduct unmistakably set forth a lawyer's duty.6 But let's look at the broad footing provided by Rule 3.1: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous."7

Statute and court rule in the civil context provide that by "presenting to the court" a document—"whether by signing, filing, submitting or later advocating it"—counsel "certifies" that to the best of her knowledge, "formed after an inquiry reasonable under the circumstances," the arguments are warranted by existing law or by a non-frivolous argument to modify or reverse existing law, and that the factual contentions have evidentiary support (or will have support after further investigation).8

The Professional Conduct Rules—requiring honest and non-frivolous engagement—apply to lawyers in all proceedings. A prosecutor is obliged to "acquire all of the relevant evidence without regard to its impact on the success of the prosecution."9 And criminal defense counsel must "determine all relevant facts known to the accused."10

Thus, whether in a civil or criminal matter, a lawyer cannot be "intentionally ignorant."11 This is not to say that counsel must satisfy herself beyond doubt that her client's every claim is true; indeed, an attorney may "rely on…her client's statements as to factual claims when those statements are objectively reasonable."12 But when asserting a client's position, counsel cannot be indifferent or blindly rely on her client. She must make an "objectively reasonable inquiry" as to the facts.13

Leeway for Defense Counsel

While prohibiting frivolous conduct, Rule 3.1 specifically allows lawyers for criminal defendants to argue so "as to require that every element of the case be established."14 This is because the "lawyer's obligations…are subordinated to…constitutional law"—effective assistance of counsel may require a lawyer to present a claim that would otherwise be prohibited.15 It is thus not

2 frivolous for a lawyer representing a criminal defendant to demand that the prosecutor prove every element of her case even if the defendant lacks factual or legal defense to the charges.16

These rules do not give counsel carte blanche—it is not permissible for defense lawyers to make frivolous arguments while holding the prosecution to its burden.17 Indeed, the Ninth Circuit sanctioned a defense lawyer with a history of advancing meritless claims, when he filed a petition for rehearing based on arguments the court deemed patently absurd. Notwithstanding counsel's repeated behavior, the court was reluctant to impose sanctions— not wanting to chill defense counsels' willingness to advance novel positions. Nevertheless, there is a limit: An argument that "flies in the face of unambiguous, firmly established law" will expose counsel to sanctions.18

Cases

The Brawley debacle is not the only case where counsel made representations that—it has been argued—would not have been made if there were objective reasonable inquiry into the facts. And, as in Brawley, not only are disciplinary actions commenced, litigants are refusing to sit by silently—they are bringing actions against opposing counsel whom, they claim, knew or should have known the facts and, notwithstanding, made misrepresentations to the court and to the world.

Elizabeth Holtzman, District Attorney of Kings County at the time of the Brawley case, set off a firestorm when she issued a press release that a judge, in chambers and with counsel present, had a victim of sexual misconduct depict the position she was in when she was assaulted. The judge was cleared of any wrongdoing. Holtzman's actions were referred to the Grievance Committee, which determined that Holtzman issued her statement without having seen the minutes of the trial or having spoken with anyone present—including the assistant who reported it; and she knew that the incident was to be fully investigated by the Administrative Judge and the Commission on Judicial Conduct (to which Holtzman complained).19

The committee issued a private reprimand to Holtzman, but, in court papers, Holtzman demanded that it be vacated, arguing that her conduct did not violate any disciplinary rule and did not constitute actual malice, as required in order to hold the press liable for defamation.20 She pursued her remedies to the Court of Appeals—it ordinarily doesn't hear disciplinary cases—which affirmed the ruling that she engaged in conduct that adversely reflected on her fitness to practice law, violating then-Disciplinary Rule 1-102(A).21

The court emphatically rejected Holtzman's "malice" argument: "Accepting petitioner's argument would immunize all accusations, however reckless or irresponsible, from censure as long as the attorney uttering them did not actually entertain serious doubts as to their truth.

3 Such a standard would be wholly at odds with the policy underlying the rules governing professional responsibility…."22

We turn next to Jane Doe #3. While still in its nascent stages, the facts are remarkable. While still in its nascent stages, the facts are remarkable. Alan Dershowitz—the prominent author, lawyer and Harvard Law professor—represented Jeffrey Epstein, who years ago made a deal with the government concerning claims that he abused under-age girls. Doe, presumably one of those girls, brought a victims-rights action against the government seeking to invalidate the deal it made with Epstein. Dershowitz is neither a lawyer nor party in the case filed by Doe, yet Doe claimed in papers filed by her two lawyers in that action (one, a former federal judge) that, while she was under the age of 18, she had sexual relations with several men, including Dershowitz, at Epstein's direction23—a claim that seems preposterous, and probably designed to get the media attention it did.

Dershowitz—vehemently denying the claim—took immediate action. He moved to intervene in the action, providing a detailed affidavit denying the claims.24 He also announced on CNN that he would report Doe's counsel to the disciplinary committee: "How does a lawyer rely on the statement of a woman who is a serial perjurer…and bring charges against someone with an unscathed reputation…without even checking?"25 He also said he would sue Doe's "sleazy, unprofessional, unethical lawyers" who should know she is lying.26 Before Dershowitz could sue, however, Doe's lawyers sued Dershowitz for defamation.27 Thereafter, Doe submitted a sworn declaration on Jan. 21, 2015, providing the specifics of her claim28—which may suggest (even if her sworn allegations are utterly false), that her lawyers had a basis to proceed, assuming they made objectively reasonable inquiry. Dershowitz challenges Doe and her counsel to prove the allegations and has vowed to change the law so there will be "consequences for those who file accusations with no offer to prove them…"29

Another case in its early stages: Paul Ceglia claimed he had an 84 percent interest in Facebook. The magistrate judge recommended that the action be dismissed (it was), and characterized Ceglia's evidence as a "gross fabrication."30 Four months ago, after Ceglia's civil action was dismissed31 and Ceglia was indicted for fraud,32 Facebook and Mark Zuckerberg brought a civil action against several of the attorneys who represented Ceglia, demanding treble damages based on an alleged violation of Judiciary Law §487.33 A prominent firm sued by Facebook represented Ceglia for less than three months but—in that time—pursued the litigation with a reportedly scorched-earth fervor. Indeed, it announced to the press that it spent weeks "investigating" their client's claims and it was "100% confident" the document relied on was authentic.34

4 Facebook alleges that the attorneys should have known that Ceglia's claims were untrue: based on publicly available information, Ceglia had been involved in other frauds; there were judgments against him; and he once pleaded guilty to possession of a controlled substance. More to the point, Facebook argues that when one of Ceglia's firms resigned from representation, it told some of his other lawyers that it discovered that the document Ceglia relied on was a fraud. Yet, remaining counsel filed an amended complaint that included references to, and reliance on, emails that Facebook asserts were obviously fake.

Conclusion

It is noteworthy that rulings dealing with a failure to sufficiently investigate the facts that underpin a client's claims largely involve civil matters. That said, what is the role of a lawyer, particularly a criminal lawyer, when asked to represent a client? Must lawyers "Google" their (prospective) clients to learn "who" they're dealing with—meaning how reliable they're likely to be? Shouldn't lawyers research their clients' claims by not only looking at the information provided by the client, but by making sure it makes sense; that documents fit with the client's story and other information received?

The rules seem to require it: Lawyers must "inform themselves about the facts of their clients' cases and the applicable law, and determine if they can make good faith arguments in support of their clients' positions."35 True, given the Sixth Amendment guarantees that subordinate the proscriptions of the ethics rules, there is more leeway for a lawyer representing a criminal defendant to make allegations based on a client's communication of "the facts." Still, zealous advocacy is not synonymous with recklessness or indifference.

It has been said that Zuckerberg did not sue for the money but wants to make a point. And— from the perspective of any lawyer—it is a point well made, regardless of whether Zuckerberg is ultimately successful.

Reprinted with permission from the February 9, 2015 edition of the NEW YORK LAW JOURNAL © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 or [email protected].

1 Letter of Robert Abrams, dated Oct. 6, 1988 (Letter), p. 2, attached to the Report of the Grand Jury of the Supreme Court, State of New York, County of Dutchess Issued Pursuant to CPL §190.85(1)(b), https://archive.org/. 2 Letter, pp. 2-5. 3 Maddox remains indefinitely suspended from the practice of law since 1990 for failing to appear to answer questions about his conduct in the Brawley case. In the Matter of Alton H. Maddox, 157 A.D.2d 244 (2d

Dept. 1990). Mason was disbarred in 1995 for his wholesale neglect of clients. In the Matter of C. Vernon Mason, 208 A.D.2d (1st Dept. 1995). Neither was formally disciplined on the merits of their conduct in the Brawley matter. 4 Steven Pagones, the ADA that Mason and Maddox falsely named as the attacker successfully sued them, Sharpton and Brawley for defamation. Pagones v. Maddox, Sup. Ct., Dutchess Co., Index 4595/88. 5 22 N.Y.C.R.R. Part 1200, Rules of Professional Conduct (Rule) Rule 3.3(a) (a lawyer shall not knowingly "make a false statement of law or fact to a tribunal or fail to correct a false statement…"); ABA Model Rules of Professional Conduct (ABA Rule) 3.3(a).

6 See generally, Rule and ABA Rule 1.2(d) (illegal or fraudulent activity); Rule and ABA Rule 4.1 (false statements); Rule and ABA Rule 8.4(c) (dishonesty, fraud, deceit or misrepresentation) and Rule and ABA Rule 8.4 (d) (conduct prejudicial to the administration of justice); ABA Standards for Criminal Justice Prosecution Function and Defense Function, 3d Ed. (ABA Standard) 3-5.6, 4-7.5 and Commentary (counsel should not "knowingly offer false evidence…"); N.Y. Judiciary Law §487 (imposing a criminal penalty, and treble damages, on a lawyer who is guilty of "deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party").

7 Rule 3.1; ABA Rule 3.1. 8 Federal Rules of Civil Procedure Rule 11; 22 N.Y.C.R.R. §130-1.1; N.Y. Civil Practice Law and Rules §§3012- a, 3012-b. 9 ABA Standard 3-3.11, Commentary; 3-3.1. 10 ABA Standard 4-3.2; 4-4.1. 11 See fn 9, 10. 12 Calloway v. Marvel Entertainment Group, 854 F.2d 1452, 1470 (1988). 13 Id. At 1470; Hadges v. Yonkers Racing Corp., 48 F.3d 1320, 1329 (1995); In the Matter of Disciplinary Proceedings against Willie J. Nunnery, 2007 WI 1 (Sup. Ct., Wis.); Jimenez v. Madison Area Technical College, 321 F.3d 652 (7th Cir. 2013). 14 Rule 3.1. 15 Rule 3.1, Commentary. 16 Simon's New York Rules of Professional Conduct, Thomson-Reuters, Rule 3.1 (Simon). See also, Restatement of the Law Governing Lawyers §110 (2) Comment (f); Monroe Freedman, Abbe Smith, "Understanding Lawyers' Ethics," 4th Ed., Matthew Bender, §4.08[6]. 17 Simon. 18 In Re Becraft, 885 F.2d 547, 550 (9th Cir. 1989). 19 In re Holtzman, 78 N.Y. 2d 184, 189 (1991). 20 New York Times v. Sullivan, 376 U.S. 254 (1964). 21 Now Rule 8.4(b); ABA Rule 8.4(b). 22 78 N.Y. 2d at 192. 23 Jane Doe #1 v. U.S. (S.D. Fla.), Case 08-cv-80736 (KAM) (Jane Doe). 24 Id. Document 282 and 282-1 entered Jan. 5, 2015. 25 CNN, "Underage Sex Claims against Prince Andrew, Dershowitz blasted as 'false'," http://www.cnn.com/2015/01/05/europe/prince-andrew-sex-abuse-allegations/. 26 http://edition.cnn.com/2015/01/06/us/dershowitz-sex-allegation/; Jacob Gershman, "Jane Doe Lawyers Sue Dershowitz for Defamation," Wall Street Journal, January 6, 2015. 27 Edwards v. Dershowitz, Circuit Court, Broward Co. available at http://online.wsj.com/public/resources/documents/2015_0106_dershowitz_defamation.pdf. 28 Jane Doe, Document 291-1 entered Jan. 21, 2015. 29 Alan M. Dershowitz, "A Nightmare of False Accusation That Could Happen To You," Wall Street Journal, Opinion, January 14, 2015. 30 Ceglia v. Zuckerberg, W.D.N.Y. 10 CV 00569-A, March 26, 2013. 31 Id., March 25, 2014. 32 US v. Ceglia, S.D.N.Y. 12 MAG 2842.

33 Facebook, Inc. v. DLA Piper (US), Sup. Ct., N.Y.Co., Index 653183/14. 34 Geoffrey A. Fowler and Scott Morrison, "Fight Over Facebook Origins Escalates," Wall Street Journal, April 13, 2011. 35 Simon.