Florida Bar Foreclosure CLE | “What to do when false affidavits have been filed in foreclosure cases”
“If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate should ensure disclosure is made to the court. It is for the court then to determine what should be done — making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing.”
Some excerpts from the report… CLE material below…
Terry Hill, director of the Bar’s Programs Division, said the four-hour program includes an overview of foreclosure filings in Florida, the players and the process, managed mediation in Florida, verified complaints, securitization, pitfalls to avoid, and rules of civil procedure.
The topics are presented by members of the judiciary as well as practitioners, including 12th Circuit Chief Judge Lee Haworth, 19th Circuit Judge Burton Conner, Boca Raton attorney Margery Golant, and Bar Ethics Counsel Elizabeth Tarbert.
Okay, so far so good…
As part of the ethics segment of the presentation, Tarbert discussed the issue of what to do when false affidavits have been filed in foreclosure cases.
Perfect! What is it going to be? Sanctions? Cases dismissed? Bar violations? Contempt?
Tarbert said the Professional Ethics Committee has opined that an attorney has an affirmative obligation, under Rule 4-3.3 of the Rules Regulating The Florida Bar, to notify the court of a potential fraud when the attorney knows that a client has deliberately lied at a deposition. That also applies if the attorney receives information that clearly establishes that the client has perpetrated a fraud on the court by filing a false affidavit, such as when a false statement has been made in the affidavit or the affidavit has been improperly verified or notarized. Then the attorney’s duty to the court supersedes the attorney’s duty to the client, and the attorney must reveal the fraud to the court.
Now we are talkin…
“An attorney’s obligation to make disclosures under Rule 4-3.3 is triggered when the attorney knows that a client or a witness for the client has made material false statements to a tribunal and the client or witness refuses to rectify the fraud,” according to Tarbert.
Tarbert said if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule 4-3.3 and ask the client to correct these false statements on the record. If the client will consent to the appropriate disclosure to the court, then the attorney may do so. The disclosure needs to be made to the court that the affidavit was improperly verified and notarized or otherwise false.
Wait, what? Ask the client to correct these false statements?
COMMENT – Rule 4-3.3
Misleading legal argument
 Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in subdivision (a)(3), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.
 When false evidence is offered by the client, however, a conflict may arise between the lawyer’s duty to keep the client’s revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
 Except in the defense of a criminally accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client’s deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process that the adversary system is designed to implement. See rule 4-1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent. Thus, the client could in effect coerce the lawyer into being a party to fraud on the court.
 If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. Subject to the caveat expressed in the next section of this comment, if withdrawal will not remedy the situation or is impossible and the advocate determines that disclosure is the only measure that will avert a fraud on the court, the advocate should make disclosure to the court. It is for the court then to determine what should be done–making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer’s version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.
Refusing to offer proof believed to be false
 Generally speaking, a lawyer has authority to refuse to offer testimony or other proof that the lawyer believes is untrustworthy. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. In criminal cases, however, a lawyer may, in some jurisdictions, be denied this authority by constitutional requirements governing the right to counsel.
 A lawyer may not assist the client or any witness in offering false testimony or other false evidence, nor may the lawyer permit the client or any other witness to testify falsely in the narrative form unless ordered to do so by the tribunal. If a lawyer knows that the client intends to commit perjury, the lawyer’s first duty is to attempt to persuade the client to testify truthfully. If the client still insists on committing perjury, the lawyer must threaten to disclose the client’s intent to commit perjury to the judge. If the threat of disclosure does not successfully persuade the client to testify truthfully, the lawyer must disclose the fact that the client intends to lie to the tribunal and, per 4-1.6, information sufficient to prevent the commission of the crime of perjury.
 The lawyer’s duty not to assist witnesses, including the lawyer’s own client, in offering false evidence stems from the Rules of Professional Conduct, Florida statutes, and caselaw.
Back to the Florida Bar Article…
With regard to the cases that have already been closed and judgment has already been entered, the duties and obligations under Rule 4-3.3 continue beyond the conclusion of the proceeding, Tarbert said. She stated that disclosure to the court needs to occur in cases involving closed cases as well as pending ones, noting the attorney would have to discuss this with the client and obtain consent.
Uh oh… This could get messy… So much for Rocket Dockets…
Tarbert said whether the case is currently pending or already closed, if the client refuses to give consent to disclose, then the attorney must make these disclosures, preferably in an in camera proceeding if possible, adding that the court may be willing to give guidance to the attorney.
Ah, camera proceeding…
From the PB Post…
While attorneys are instructed to report fraud, they should not to do so in a public court hearing without their client’s permission. Instead, the banks’ attorneys should ask for a private hearing with the judge, said Cynthia Booth, an ethics attorney with the Bar.
“You try to cause the least amount of harm as possible to the client,” Booth said. When fraud is suspected, an attorney’s duty to the court supercedes the attorney’s duty to the client, Booth said. Private hearings would allow the attorney to fulfill both duties, she added.
But the thought of private hearings about widespread fraud in foreclosure cases has some lawyers bristling. Robo-signers have admitted in depositions that they signed off on hundreds of thousands of foreclosures and major lenders have already acknowledged that court documents were not properly verified, said foreclosure defense attorney Thomas Ice of Ice Legal in Royal Palm Beach
“This is a very public problem and to try and address it in a private way is not going serve the court in its attempt to assure everyone about the integrity of the court system,” Ice said.
St. Lucie Circuit Judge Burton Conner, another instructor, said he was not aware of the Bar’s recommendation about private hearings. Conner, also a member of the Florida Supreme Court’s Task Force on Residential Mortgage Foreclosures, said private hearings, called in-camera hearings, are appropriate in certain cases but very rare.
I can just see how effective these “private hearings” in public court proceedings will turn out. The final statement in the bar article says it all…
The Comment to Rule 4-3.3 summarizes the issue: “If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate should ensure disclosure is made to the court. It is for the court then to determine what should be done — making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing.”
Anyway, links to the CLE material and video are below…