Advocacy and Lying are not the same. An attorney has a duty to not lie to the tribunal.
An attorney has a duty to inform the court even when it is adverse to the client’s interest. I’ve never witnessed that.
Very recently, I caught the PLF and its client (defendants in a case where I’m the plaintiff) engaging in perjury. The perjury was an omission of what was actually published to a law clerk and Judge’s chamber alleging that I was engaged in fraud and 15 years ago arrested for stalking my ex-wife. All false. All outrageous. The evidence was acquired via subpoena to the US Marshals Service.
Now at some point in time counsel for the defendant in my defamation lawsuit knew that the representations made by the defendants withheld information critical to the court, aided and abetted with perjury. It may have been perjury by omission, but it was and is perjury. I guess lawyers are just like most when being attacked.
Rule 3.3 Candor Toward 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;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; 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.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
But in the event that an attorney fails to disclose, how can this rule be enforced? Some circumstances permit courts to infer an attorney’s knowledge of perjury. But the reality is, that only under the most extreme circumstances does the cover up of false testimony ever effect the attorneys opportunity to do the same time and time again. It’s a dirty business, apparently comprised of dirty litigators.
Obviously the Oregon State Bar does not prescribe to the American Bar Associations Model Rules of Conduct, even though the Oregon State Bar’s Rules of Professional Conduct.orpc
I have consistently tried to encourage the PLF with a call to do better, to require of the attorneys hired by the PLF to representing members of the OS Bar to engage in ethical behavior and in particular to not lie to a tribunal about the facts or about the law. Their response is nothing. They wont meet. They wont intervene. They wont monitor. They don’t want to know. They just want to win.
Isn’t it a shame? But isn’t it common.
The Rule 3.3 (d) language is a bit surprising. “(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” Note that it mandates an ex parte proceeding.
Ex parte means without the participation of the other or opposing party. But what does this mean as to the client. Is it possible that not even the client is aware of the ex parte, private and likely confidential communication with the court? Maybe. That would explain a lot.
Until next time.