By Thomas P. McGarry and Thomas P. Sukowicz
Hinshaw & Culbertson
Rule 3.3 of the Illinois Rules of Professional Conduct requires that lawyers deal with courts or other tribunals with candor.
One section of the rule prohibits lawyers from knowingly making a false statement of fact or law to a tribunal or failing to correct a false statement previously made to the tribunal by the lawyer.
This is the section of the rule for which lawyers have been most frequently disciplined.
Censure has been the sanction for conduct that included making false statements about a judge in a motion for substitution (In re Barringer, (2001) 00 SH 801, M.R. 17621); notarizing and filing an affidavit for service by publication falsely stating that the client's wife's residence could not be found, when the attorney knew the wife's address and had previously sent mail to her (In re Kelleher, (1995) 93 SH 102 M.R. 11701); and filing a pleading with the Industrial Commission on behalf of and as the attorney for an estate, when the attorney did not represent the estate and had no authority to act for the estate (In re Hayes, (2005) 03 SH 10, M.R. 20005).
Lawyers have also been suspended for such conduct. Attorneys were suspended for six months for signing in blank valuation complaints which were completed by a nonlawyer and filed before a county tax board, In re Yamaguchi, 118 Ill. 2d 417, 515 N.E.2d 1235 (1987), and for knowingly making false statements in a petition seeking the appointment of a conservator, In re Betts, 109 Ill.2d 154 (1985). An attorney was suspended for nine months for conduct that included preparing and filing a false stipulation to dismiss a wage deduction proceeding pending against his wife, In re Passman, 93 CH 573, M.R. 12249 (1996).
An attorney was suspended for one year for filing with the probate court a petition to authorize the sale of a house and obtained an order for its sale, without disclosing to the court that the contract was for an installment sale, In re Thebeau, 111 Ill. 2d 251 (1986).
Another requirement of Rule 3.3 is that a lawyer must disclose legal authority known to the lawyer to be directly adverse to the position of the lawyer's client if it was not disclosed by opposing counsel. In In re Gilna, 96 CH 544, M.R. 12756 (1996), an attorney was disbarred for conduct that included his failure to disclose to the appellate courts in several immigration appeals the controlling decision recently issued by the 7th U.S. Circuit Court of Appeals.
Rule 3.3 prohibits a lawyer from knowingly offering false evidence. In In re Saltzman, 03 CH 28, M.R. 19950 (2005) an attorney was suspended for nine months for conduct that included signing another lawyer's name on an affidavit filed with the court without his authorization.
The rule also requires that a lawyer take reasonable remedial measures, including disclosure to the court, if the lawyer learns that he, his client or a witness called by the lawyer has offered material false evidence. In In re Nalick, 2009 PR 65, M.R. 19294 (2004), an attorney was suspended for one year for conduct that included failing to correct the false testimony of a client at a creditor's meeting in a pending bankruptcy case.
What constitutes "reasonable remedial measures" within the meaning of Rule 3.3?
In a recent "Hearing Board Report and Recommendation," 2009 PR 65 (Jan. 18, 2011), an attorney was found to have filed a verified petition for dissolution of marriage stating that the parties had a son who was born of their marriage. The client testified in court on an emergency petition for order of protection, that her husband was the father of her child.
At some point later in the representation, the attorney became aware that another man was adjudicated to be the father of the child. After the true father's identity was adjudicated, the divorce case was continued on four occasions and on each occasion the order directing the husband, who was not the father, to pay support was extended.
Although the attorney did not correct the misinformation presented to the court, he did inform the husband's attorney of the results of the paternity test and agreed with him that the husband would be reimbursed for payments made and that he would not make any further payments.
The hearing board, however, held that the attorney had an affirmative obligation to take "reasonable remedial measures," which the board stated should have included the disclosure of the true paternity of the child to the divorce in an amended petition for dissolution, so it could have been dealt with in an appropriate manner. The board found that the attorney, as an officer of the court, had a duty to inform the judge of the inaccuracy of the statements in his client's petition and in her testimony.