Rule clarifies duty if your client is lying

first_imgDPC also takes up failure to respond to a grievance and direct mail solicitation issues Senior EditorUnder proposed rule amendments being sent to the Supreme Court, lawyers must tell the court if they know a client has lied or provided false information to a court, Bar members could face contempt if they fail to respond to a Bar grievance inquiry, and Bar members may not send direct mail solicitations to respondents of domestic violence restraining orders until after the orders have been served.Those were among several Bar rule and Standing Board Policy amendments presented by the Disciplinary Procedure Committee Chair Andy Sasso and approved by the Bar Board of Governors at its May 30 meeting.On rule 4-3.3, the amendment clarifies in the comment section that a lawyer must attempt to get a client who has provided false information to the court to correct that information. It also provides that, “In any case, the advocate should ensure disclosure is made to the court,” according to the amendment. The amendment also clarifies that while a lawyer must refuse to offer testimony he or she knows is false, the lawyer can also refuse to offer testimony or evidence that he or she reasonably believes is untrue.Sasso added that the amendment specifies that a lawyer is not precluded from offering evidence if he or she only has a reasonable belief it is false.Proposed changes Rules 3-7.11 and 4-8.4 create a new summary procedure for cases where a Bar member fails to respond to a Bar grievance inquiry. Currently, a failure to respond must be processed through the grievance committee, referee, and appellate process if necessary. The new system would allow the Bar to petition the Supreme Court for a contempt and show cause order, allows assignment of such cases to referees for factual findings, and authorizes suspensions in cases where attorneys fail to respond.The proposed new Rule 4-7.4(b)(1)(G) stemmed from a recommendation from the Citizen’s Forum that was endorsed by the Standing Committee on Advertising. It came from a case where an individual sought a domestic violence restraining order. A lawyer obtained the respondent’s name from public court records and mailed a solicitation — which arrived before the restraining order was served, before the respondent knew of its existence, and while the person obtaining the order and the respondent were still sharing a home.Rule 4-7.4(b)(1) provides a list of instances where a direct mail solicitation may not be made, and adds a new subsection to that list. It provides that a solicitation may not be mailed to the injunction respondent “if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter.”One issue that drew board discussion involved amendments to Rules 3-7.2(m) and 3-3.2, which deal with Bar grievance cases involving judges who have been removed from the bench for misconduct that might also violate Bar rules.The amendments would streamline the Bar case by providing that factual findings in the Supreme Court order removing the judge would be accepted as conclusive proof of those facts in the Bar grievance. The rules also streamline notice and filing procedures for the Bar.Board members David Rothman and Larry Sellers said the rule commits the Bar to accept as facts something determined by the Judicial Qualifications Commission.“We’re bound by the presentation of someone else and we may do a better job or a different job,” Rothman said. “What if there is more proof out there to show the other side of the coin and that was not presented [to the JQC]?”But Sasso said the rule is limited to cases where the Supreme Court issues an order, with factual findings, in cases where a judge is removed from office. He added that in JQC cases where a judge receives a lesser discipline than removal from office, the Bar cannot proceed with a grievance because it has no jurisdiction over sitting judges.The board approved the proposed amendments by voice vote, with several dissents.Other amendments approved included:• A new Rule 3-5.4 to codify Bar policies on publication of Bar disciplinary actions, which came about from a request from the Supreme Court. It provides, in accordance with current practices, that all disciplinary sanctions, including admonishments, must be disclosed upon inquiry. The rule follows current policy of listing a member’s 10-year history of admonishments, reprimands, suspensions, probations, and disbarments.• A new Rule 3-7.17, which allows the Bar to petition the Supreme Court, or the court on its own motion, to prohibit vexatious conduct or limit the activities of those engaged in such conduct. The rule provides that, “Vexatious conduct is conduct that amounts to abuse of the Bar disciplinary process by use of inappropriate, repetitive, or frivolous actions or communications of any kind” that are aimed at participants in a grievance proceeding, the Bar, or the court.• An amendment to Rule 4-7.10(c) clarifying the definition of lawyer referral services.• An amendment to Rule 5-1.1(g) revising the definition of IOTA trust funds to conform with recent rulings. The change provides that funds in an IOTA trust account must be those that the lawyer has determined “cannot earn income for the client or third person in excess of the costs to secure the income.”• A new Standing Board Policy 15.77, which gives guidance to Board of Governors members when they act as designated reviewers in grievance cases.• An amendment to Rule 4-7.5, which deletes the requirement that a nonlawyer spokesperson in an electronic ad must be identified as a nonlawyer. The change would address a problem where lawyers placing public service sponsorships on National Public Radio stations must, under NPR policies, have the ads read by station personnel which in turn appears to violate Bar rules. With the proposed change, if there is any doubt about whether a nonlawyer spokesperson is a lawyer, then he or she would have to be identified as a nonlawyer under other Bar rules, which require that ads not be misleading.• Adding subsection (p) to Rule 3-2.1, which provides that the Bar president with board approval will select a designated reviewer for a special grievance committee.The board tabled a proposed Standing Board Policy that the Bar will not record a public reprimand administered at a board meeting except with the authorization of the Bar president, and will not post any such recording on its Web site. Some board members asked why there was an exception to the policy, and Sasso explained that a reprimand might be recorded for use at a CLE or training session. He said the policy not to post any recording on the Web site was because that could make the impact of a public reprimand more severe than a more serious disciplinary case that resulted in a suspension. Board members said they would like clearer language on the issue and decided to postpone it for another meeting. Sasso noted the policy will only apply to the Bar, which cannot prohibit the public or news media from attending a board meeting and recording or broadcasting a public reprimand. Rule clarifies duty if your client is lying Rule clarifies duty if your client is lyingcenter_img July 1, 2008 Gary Blankenship Senior Editor Regular Newslast_img read more

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