Wednesday, April 16, 2014

Does truth require full disclosure?

I recently ran across a verified motion for fees. The case is not pending before me. This motion listed the statutory considerations from 440.34 and Lee Engineering, and then discussed each in some detail. The section on "the experience, reputation, and ability of the lawyer or lawyers performing the services" caught my attention. 

This provided a fair amount of detail about the attorney seeking the fee. Education experience, bar admissions, and court admissions (federal) were provided. The conclusion was that this attorney's experiences were exemplary. The impression left by the sworn affidavit was that this attorney's qualifications and reputation were absolutely untarnished.

The verified motion did not mention that the attorney had previously been disciplined by The Florida Supreme Court, upon recommendation of The Florida Bar. Is an attorney who has been disciplined by the Court an exemplary attorney? Is that attorney's reputation untarnished? Should an attorney who has been so disciplined make disclosure of that when discussing her or his "experience, reputation, and ability?" Is the failure to do so a material misrepresentation, by omission?

Rule 4-3.3 of the Florida Rules of Professional Conduct defines the attorney's duty of "Candor toward the Tribunal." This provides that a lawyer shall not knowingly make a false statement. It also provides that a lawyer shall not "fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Full disclosure is required when the client is attempting a fraudulent act.

As to the law, Rule 4-3.3 is a bit broader. It requires lawyers shall not "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." That seems by its plain language not to apply to facts however.

There is no specific provision which requires that an attorney make full disclosure of facts generally. Would an attorney's former disciplinary history be relevant in a proceeding? If it is relevant, perhaps on the question of whether a particular attorney is or is not exemplary in reputation, then whose duty is it to disclose that prior discipline? If the affiant attorney does not disclose, is it an obligation of the defense to do so? Is that merely a tactical decision for counsel?

The Preamble to the Rules of Professional Conduct tells us that rules which use "shall" or "shall not" "define proper conduct for purposes of professional discipline" and that "every lawyer is responsible for observance of the Rules of Professional Conduct."

I think of the many workers' compensation attorneys with whom I have been honored to practice. I think of the many attorneys whose cases I have heard. There is a long list of highly effective, professional and frankly exemplary attorneys in Florida workers' compensation. 

People make mistakes. Society imposes penalties sometimes. When the punishment is concluded, should that be the end? Is it fair for someone's misdeeds to follow them forever?

I set out to find an answer to this question. I conclude with more questions than answers. What do you think? Email me at david.langham@doah.state.fl.us


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