Attorney Jointly Liable with Client for Misconduct

Professionals must play the hand they’re dealt. Good, bad or ugly, a professional assesses the situation and provides a recommendation as to how to overcome certain obstacles and achieve the client’s objectives. However, professionals do not have unfettered authority. Rather, all classes of professionals are bound by certain guidelines which delineate how a professional must behave on behalf of the client. Professionals that stay the course will not be held accountable for the client’s indiscretions, mistakes or even intentional wrongdoing. But, in the rare scenario when a professional is complicit with the client, both may be held liable.

Consider for example the following case in which both Attorney and Client were found culpable for spoliation of evidence. Plaintiff filed a race-based employment discrimination claim against her prior employer. She claimed Employer was passed her over for promotions prior to her termination.

Allegedly, prior to Plaintiff’s deposition, she reviewed handwritten notes, which she claimed was merely a grocery list. She even testified under oath that the notes were “personal” in nature and not related to her discrimination claim.  Despite requests to review the notes, both Plaintiff and her counsel refused to turn them over.

Eventually, Employer obtained a court order requiring Plaintiff to produce the notes.  As it turned out, the documents produced did contain case related materials, but did not contain the notes that Employer’s attorneys alleged they observed Plaintiff reviewing prior to her deposition.

Employer then filed a motion for sanctions for spoliation of evidence. During an evidentiary hearing, Employer argued that the hearing established that both Plaintiff and her lawyer misrepresented the contents of the notes, they refused requests to inspect the notes, and despite the fact that Plaintiff was instructed to preserve the notes and turn them over, what she ultimately produced was not in fact the notes she was reviewing at the deposition.

The court granted Employer’s motion for sanctions and found that both Plaintiff and her attorney should be ordered to pay Employer’s reasonable attorney’s fees associated with the motion. The court found that it was both “plaintiff and [her attorneys] intentional and calculated conduct,  beginning at the deposition and continuing through the January 14, 2016 hearing before the Court, as well as their related filings with the Court, that left the Court with no choice but to sanction them for the inappropriate behavior.”

The court held that plaintiff and her attorney were jointly and severally liable for attorney’s fees as sanctions in the amount of almost $14,000.

Attorneys have a duty to act ethically and guide their clients to do the same.  Allowing your client to perpetuate violations of court orders or rules and/or supporting and furthering such violations can put you on the hook for sanctions, not to mention the possible malpractice suit that might follow.

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