Shari Klevens, left, and Alanna Clair, Dentons. Courtesy photo

It is not revolutionary to suggest that attorneys can face serious ramifications for making misrepresentations to a court. However, even attorneys who do not intend to misspeak may at some point in their career make a factual misrepresentation to a court, whether because of a misunderstanding of the facts, an improper assumption as to the facts, or even as a result of zealous advocacy.

The risks of making a factual misstatement to a court can be quite severe, as illustrated by a high-profile case in 2016 that still has ramifications today. After finding that several DOJ attorneys defending the federal government made misstatements of fact in response to inquiries from the court, a federal district judge imposed broad, severe sanctions on the DOJ.

Because the DOJ attorneys made statements “that clearly did not match the facts,” the court found it appropriate to impose sanctions not only on the attorneys who made the statements, but also against other DOJ attorneys not involved in the case. Eventually, the severe sanctions were withdrawn because the court ultimately concluded that the alleged misstatements were inadvertent. However, the court's order has served as a warning for attorneys regarding the potential risk of anything less than the utmost candor when making representations to the court.

Misrepresentations Could Hurt the Client's Cause

Attorneys who make inadvertent misrepresentations of fact to a court—whether because the attorneys misunderstand the issue or failed to confirm their assumptions with a client—may find that they are not the only ones being punished. Indeed, courts can issue sanctions against the clients themselves.

In the case noted above, the court primarily focused on levying sanctions against the DOJ attorneys. However, the court was clear that it had the authority to also punish the client for the attorney's actions. Here, the situation was unique because the client was the federal government, whose costs are largely borne by the public. Thus, although the court considered it within its rights to dismiss the case for the attorney's misrepresentations, the case involved issues of national significance. Further, although monetary sanctions were justified by the misconduct, such a sanction would have penalized taxpayers and thus would have “no corrective effect” on the misconduct.

Had the case involved a non-governmental client entity or individual, however, the outcome might have been different. Indeed, in a more typical case, a court may not hesitate to order the case dismissed in favor of the opposing party where the misrepresentations are particularly severe. It is also not uncommon for a court to enter an order awarding monetary sanctions against both the attorney and the client for misrepresentations.

Thus, misrepresentations made by an attorney on behalf of a client can create risks for both the attorney and the client. The potential effect on the client's case certainly can serve as additional deterrent for attorneys who may be speaking without confirming their facts.

Potential Implications for the Firm

As part of the sweeping sanctions originally ordered by the court, all attorneys at the DOJ's home office who appeared or sought to appear in any of the 26 states that were plaintiffs in the action were required to take three hours of ethics courses every year for five years. The scope of this sanction thus included attorneys who had never set foot in the judge's courtroom and who may not have had any direct knowledge of the representations made by the DOJ attorneys handling the case at issue.

Eventually, the court withdrew this sanction in light of later conclusions. However, there is still a lesson here for attorneys—their firms or practices could get roped into more creative sanctions orders. For example, if the court believes that attorney misconduct is intentional or that it is a result of culture at a firm that condones or even facilitates misconduct, the other attorneys at the firm could also be subject to sanctions.

Given the potential ramifications, if an attorney has concerns regarding whether the client can comply with a court's order or whether the attorney is able to make certain representations to the court, it may be helpful for the attorneys to seek the advice of in-house counsel or even outside ethics counsel.

Ask Questions

In arguing against the imposition of sanctions, the DOJ attorneys contended (among other things) that they did not fully understand what was being asked of them and that they did not intend to mislead the court. Eventually, the court agreed, although for a time the court believed the misrepresentations to have been intentional.

Regardless of whether the attorneys intentionally or mistakenly responded to the court's inquiry, the lesson for other attorneys is to avoid any ambiguity when it comes to the scope of an order or a question from the court.

When in doubt, ask. Attorneys can file a motion to clarify the order or, when a judge asks an attorney to represent a fact or a position in open court, attorneys can take steps to ensure that they understand precisely what the judge is asking. Depending on the circumstances, it may be appropriate to defer responding to the question until the attorney can perform further investigation or can discuss the issue with the client.

Given the high stakes, it may be preferable to err on the side of caution and request clarification.

Shari L. Klevens is a partner at Dentons in Atlanta and Washington, D.C., and serves on the firm's U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chairwoman of Dentons' global insurance sector team. Alanna G. Clair is a partner at the firm in Washington, D.C., and focuses on professional liability defense. Klevens and Clair are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”