Duties of Lawyers Extend Beyond Taking "Evidence" at Face Value

Jan 30, 2023

Here is the problem for certain lawyers:

If they question the instructions, data, reports and testimony offered to them — like really question them — they won’t see a single foreclosure case referred to them. Law firms have been built using foreclosure prosecution as their sole business model. Some like Tiffany and Bosco made so much money doing that, that the principals each ended up with private jets, yachts, and chalets. Stern in Florida sold his “business” for tens of millions of dollars. So it goes without saying that such law firms and the lawyers who work for those law firms have an incentive NOT to ask questions.

But if they continue with their current custom and practice they are likely to end up getting the treatment from a very angry judge, especially in federal court. That is because those lawyers have tacitly agreed to receive and act on uncorroborated information without performing ANY due diligence as to the veracity or authenticity of the claim, the supporting documents or the proferred testimony of a witness who knows nothing other than the contents of a script that he or she memorized. Besides being held in contempt, sanctions, and fines, they could lose their license.

Many law firms in the country are acutely aware of this and as such have refused to enter the foreclosure marketplace because they know that the instructions have not been issued by anyone who has legally recognized authority.

They know that not being able to speak with an officer of the claimant for whom they are being asked to represent is not within the bounds of the ethics and disciplinary rules and is likely to land them in hot water — like the lawyer who got stuck with a $100,000 fine in South Florida when he admitted to filing a foreclosure suit for U.S. bank but had never spoken with anyone from U.S. Bank nor had never received any document from U.S. Bank, much less the ledger that corroborated the existence of an unpaid loan account. The Circuit Court judge (state court) became infuriated when the admission finally came out.

In Oregon, appellate attorneys admitted in oral argument that they and no idea about the identity of the creditor for the alleged debtor.

So to put a finer point on it, consider https://e-discoveryteam.com/2018/10/14/judge-pauley-reminds-lawyers-of-their-duty-to-verify-client-representations/

If it is key electronic evidence, then give it a full dental exam, including especially the metadata. Plaintiff’s counsel in this case failed to do that. He barely glanced at the horse. As a result the case was lost and so was he. He was forced to withdraw and almost personally sanctioned for violation of Rule 3.3 Candor Toward The Tribunal, ABA Model Rules of Professional Conduct. Also see: Greene, Attorney Avoids Sanctions Over Client’s ‘Staged Photos’ (Bloomberg Law 7/31/18) (“Attorney won’t be sanctioned for failing to discover that his client had lied about when digital photos were taken in order to support her case against New York City police officers.”).

This holding re Rule 37 should be limited to the unusual facts of Lawrence. The production of altered and faked evidence to another party, instead of the originals, certainly can be a Rule 37 violation. You do not have to prove that the attorney was in on it before Rule 37 applies.

We should all be aware of the Big Bad Wolf client who comes in with computer evidence too good to be true. Look carefully, Grandma may be a wolf and you may be tangled in a web of fraud.