Clients will usually say “Bravo!” when you exhibit diligence, zealous advocacy, and candor in your legal representation. But what happens when a client makes a misrepresentation to you or engages in criminal or fraudulent conduct during the course of your representation? What are your duties with regard to assessing the validity of a client’s statements, or the legality of their actions? A recent legal malpractice lawsuit filed by imprisoned “Real Housewives of New Jersey” star Teresa Giudice has thrown these questions into the limelight.
According to the Bravo! network star, her former attorney committed significant errors when handling Giudice’s 2009 bankruptcy petition, ultimately leading to her 2014 conviction for bankruptcy fraud and conspiracy to commit mail fraud. Giudice pled guilty in this criminal action to charges mostly relating to financial actions she took leading up to the bankruptcy filing.
The suit centers around falsified documents Giudice completed, such as mortgage applications and tax returns, which were used against her in the criminal proceeding. The attorney alleges that he cannot be held responsible for documents that Giudice executed years before she met the attorney, and because Giudice made statements under oath during the bankruptcy proceeding attesting that she had reviewed these documents for their accuracy.
“All of the crimes she committed were done years and years before I knew her. I did everything properly and I can’t undo things that she did in the past,” the attorney said. “Anything she went to jail for occurred well before the bankruptcy filing.”
This dispute raises interesting questions about the duty to “second guess” the representations of a client and your duties when you know or suspect a client is engaged in wrongdoing. While we wait for the exciting conclusion of this reality vignette, here are some tips to consider when representing a client who may be engaged in criminal conduct:
- Real talk rules. Per Rule 1.2, you may not counsel a client to engage in conduct that you know is criminal or fraudulent, but what if you’re not sure? If you suspect your client is engaged in something fishy, it may be prudent to have a candid conversation. If he tells you the truth about wrongdoing he is engaged in, then your ethical obligations become clear-cut. If you ultimately find out he lied about his criminal conduct, you at least made a reasonable effort to determine whether your representation was proper.
- Ostriching off-limits. Looking the other way when you know your client is engaged in criminal conduct is also out-of-bounds. Such willful blindness is unethical. Rule 8.4, which provides a blanket ban against dishonest conduct, is also implicated in these situations.
- Parrot problems. Per Rule 4.1, you are also on the hook if you affirm a statement by your client that you know is false.
- Pull the plug. When your client is already engaged in a course of illegal activity when your representation commences, avoid assisting the client in any fraudulent or illegal activity. Immediately stop rendering help, and withdraw, if conduct you believed was kosher turns out not to be. In such cases, withdrawal and/or additional steps, such as giving notice to other parties of the wrongdoing, may be necessary. Check out Rule 4.1, for further details.