Any attorney who appears regularly in court knows the importance of being candid and direct with the Judge. However, sometimes an attorney can make a misstep in her communications with the court. Whether as a result of an honest mistake or in an attempt to act as a zealous advocate, attorneys can sometimes make statements on the record that may not be entirely accurate.

This can arise in the context of a Judge's inquiry as to the status of a discovery dispute, a client's efforts to identify or produce relevant documents, or a discussion regarding the merits of the case. A recent widely publicized decision shows how great the risk can be for attorneys who make misstatements to a Judge — whether intentionally or not.

In 2016, after finding that several Department of Justice attorneys defending the federal government made misstatements of fact in response to inquiries from the court during hearings and in pleadings, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas imposed sanctions that are still discussed today due to their severity and breadth.

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 Eventually, the severe sanctions were withdrawn because the court ultimately concluded that the alleged misstatements were inadvertent.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 served as a warning for attorneys regarding the potential risk of anything less than the utmost candor when making representations to the court.

There Are Risks to the Firm

It can be extremely embarrassing for an attorney to be reprimanded by a Judge for a misstatement of fact. It can be even more embarrassing if the Judge's sanctions for that misrepresentation adversely impact not only that attorney, but also the attorney's law firm.

As part of the sweeping sanctions originally ordered by the court in the DOJ matter, 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 DOJ attorneys who had never set foot in Judge Hanen's courtroom and who may have had no knowledge of the representations made by the DOJ attorneys handling the case at issue.

Eventually, the court withdrew this sanction, but the DOJ took steps to implement training before the Order was vacated. The lesson to be drawn is that a court may craft creative sanctions depending on the circumstances, and such sanctions may go beyond those attorneys directly responsible for the misconduct. In particular, where 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.

There are Risks to the Client

Representations made by an attorney on behalf of a client can create risks for both the attorney and the client, who may be compelled to pay sanctions or could even lose their case.

While the court chose to focus on punishing the DOJ attorneys for their misconduct, it made clear that it was well within the court's power to also punish the client (i.e., the DOJ itself) for its attorney's actions. Most severely, the court considered whether a proper remedy was to order that the case be dismissed, but ultimately decided that such a sanction would be inappropriate given that the case involved issues of national importance. However, 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.

In addition, the court observed that in many cases involving an attorney's misrepresentation it would be appropriate to award costs or to otherwise impose a monetary sanction. However, because the misconduct at issue was committed by the DOJ, such a sanction would ultimately have been borne by the taxpayers and thus would have had “no corrective effect” on the misconduct, according to the Judge. Again, had the case been a typical one involving a private party instead of the government, it seems that the attorneys would have found themselves facing a potentially large monetary sanction.

Don't Be Afraid to Speak Up

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. 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 rather than make an assumption that could create long-lasting ramifications.

Shari L. Klevens is a partner at Dentons and serves on the firm's US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons' global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer's Handbook: Ethics Compliance and Claim Avoidance.”