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February 1, 2011
Free Bar foreclosure CLE ready for download

“Foreclosure Litigation in Florida,” The Florida Bar’s foreclosure plaintiff education program, is now available to all Bar members at no charge through The Florida Bar 24/7 Online CLE Catalog as an online or downloadable program.

Terry Hill, director of the Bar’s Programs Division, said the four-hour program includes an overview of foreclosure filings in Florida, the players and the process, managed mediation in Florida, verified complaints, securitization, pitfalls to avoid, and rules of civil procedure.

The topics are presented by members of the judiciary as well as practitioners, including 12th Circuit Chief Judge Lee Haworth, 19th Circuit Judge Burton Conner, Boca Raton attorney Margery Golant, and Bar Ethics Counsel Elizabeth Tarbert.

The program is available at floridabar.org.

As part of the ethics segment of the presentation, Tarbert discussed the issue of what to do when false affidavits have been filed in foreclosure cases.

Tarbert said the Professional Ethics Committee has opined that an attorney has an affirmative obligation, under Rule 4-3.3 of the Rules Regulating The Florida Bar, to notify the court of a potential fraud when the attorney knows that a client has deliberately lied at a deposition. That also applies if the attorney receives information that clearly establishes that the client has perpetrated a fraud on the court by filing a false affidavit, such as when a false statement has been made in the affidavit or the affidavit has been improperly verified or notarized. Then the attorney’s duty to the court supersedes the attorney’s duty to the client, and the attorney must reveal the fraud to the court.

“An attorney’s obligation to make disclosures under Rule 4-3.3 is triggered when the attorney knows that a client or a witness for the client has made material false statements to a tribunal and the client or witness refuses to rectify the fraud,” according to Tarbert.

Tarbert said if an attorney knows that any material false representations have been made on the record by a client to any court or tribunal, then the attorney must follow the instructions in the Comment to Rule 4-3.3 and ask the client to correct these false statements on the record. If the client will consent to the appropriate disclosure to the court, then the attorney may do so. The disclosure needs to be made to the court that the affidavit was improperly verified and notarized or otherwise false.

With regard to the cases that have already been closed and judgment has already been entered, the duties and obligations under Rule 4-3.3 continue beyond the conclusion of the proceeding, Tarbert said. She stated that disclosure to the court needs to occur in cases involving closed cases as well as pending ones, noting the attorney would have to discuss this with the client and obtain consent.

Tarbert said whether the case is currently pending or already closed, if the client refuses to give consent to disclose, then the attorney must make these disclosures, preferably in an in camera proceeding if possible, adding that the court may be willing to give guidance to the attorney.

As set forth in the Comment to Rule 4-3.3, such action causes a conflict with the client, requiring withdrawal of the attorney from the representation in pending cases, where the client refuses to consent to disclosure.

Other Rules of Professional Conduct are also implicated with this issue. Rule 4-1.2(d) prohibits a lawyer from assisting a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. Similarly, Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witness to testify falsely. Rule 4-8.4(a) prohibits a lawyer from violating the Rules of Professional Conduct or knowingly assisting another to do so. Finally, Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation, and Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Tarbert said although not ethically required to withdraw if the client will permit the attorney to make the required disclosure. However, if the attorney feels compelled to withdraw, the attorney should do so in a manner that neither breaches the duty of confidentiality to the client nor materially prejudices the client. Therefore, any motion to withdraw should state only general grounds. Even if the duties of the attorney under Rule 4-3.3 are triggered, putting the information into a motion to withdraw is not a recommended way to inform the court. The Comment to Rule 4-1.6 explains that where disclosure of confidential information is necessary, the attorney should avoid any unnecessary disclosure, should limit disclosure to persons having a need to know, and obtain protective orders or make other appropriate arrangements to minimize risk of disclosure.

The Comment to Rule 4-3.3 summarizes the issue: “If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially if circumstances permit. In any case, the advocate should ensure disclosure is made to the court. It is for the court then to determine what should be done — making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing.”

[Revised: 10-22-2014]