To what extent does an attorney have a duty of candor with the court and opposing counsel? Rule 3.3 of the Rules of Professional Conduct prohibits knowingly making a false statement of fact or law to a tribunal. A Fourth Department disciplinary decision addressed this in a proceeding that involved representing a defendant on criminal charges, Matter of Bybel, 2014 WL 3889911.
The attorney had represented a client in two drinking-driving cases, one in Darien Town Court, the other Lackawanna City Court, the two cases overlapping in time. The client first was convicted of DWI after a bench trial in Darien, with sentencing deferred.
When charged in Lackawanna, the client was allowed to keep his license and to plead guilty to the lesser offense of DWAI. The attorney represented to the Lackawanna judge, on the record, that it was the client’s “first one,” obtaining a conditional discharge and the minimum fine.
Back to Darien: Less than a month afterward, at the time of sentencing, the lawyer told the prosecutor that the Lackawanna DWI charge had been dismissed, not disclosing that the case had been pleaded down to DWAI, a traffic infraction. The attorney further represented that the Darien conviction was the “only arrest he’s ever had” and that the client “had never been in trouble before.”
The client, upon questioning by the judge in Darien, acknowledged having been convicted of a drinking-driving offense.
After the disciplinary hearing, the referee made several findings favorable to the attorney. The grievance committee moved to disaffirm the findings.
The Fourth Department held the referee’s findings to be supported by the record, and confirmed them, but went on to address other matters that the referee had not made findings on.
The court found that the attorney’s statements in Lackawanna of the DWAI being the “first one” were knowingly made in an attempt to conceal his client’s criminal history. As to Darien, the attorney intentionally sought to mislead the judge and prosecutor at sentencing. The statements, while technically true, were purposefully incomplete and misleading.
The attorney violated Rules of Professional Conduct 3.3(a)(1), knowingly making a false statement of fact or law to a tribunal, as well as other ethical violations. Taking into consideration four previous letters of caution, the attorney was suspended for nine months.
Making false statements has previously been addressed in disciplinary proceedings. For example, in Matter of Cohn, 308 AD2d 79 (1st Dept. 2003), an attorney was disciplined for, among other things, what happened at a federal proffer session. The attorney made inaccurate and misleading statements to a prosecutor why his client canceled a proffer session and, at the session, the attorney knew that information his client gave was false but took no steps to correct “the record.”
The attorney was suspended for five years, see also Matter of Katz, 15 AD3d 1 (1st Dept. 2005); Matter of Rodeman, 65 AD3d 350 (4th Dept. 2009); Matter of Pu, 37 AD3d 56 (1st Dept. 2006) (reciprocal federal discipline); Hashimoto v. De La Rosa, 4 Misc3d 1027(A), 798 NYS2d 344 (Sup 2004) (apparently false certification in divorce action, referral to disciplinary committee); Matter of Purizhansky, 42 AD3d 20 (4th Dept 2007) (federal conviction; false statements in letter, to assist a friend).
Gary Muldoon is a lawyer and author of “Handling a Criminal Case in New York.” His email address is firstname.lastname@example.org.