Can we all agree that it is unfair to provide intentionally a judge with the wrong legal authority? Indeed, the Virginia Rules of Professional Conduct mandate that a “lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal.” Nor may a lawyer knowingly “fail to disclose to the tribunal controlling legal authority in the subject jurisdiction known to the lawyer to be adverse to the position of the client and not disclosed by opposing counsel.” Rule 3.3(a)(1) & (3).
While seemingly counterintuitive to the notion of zealous advocacy on behalf of one’s client, Comment 4 to the rule explains that: “Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. Furthermore, the complexity of law often makes it difficult for a tribunal to be fully informed unless pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. ”
Even as “[t]he advocate’s task is to present the client’s case with persuasive force [,] [p]erformance of that duty . . . . is qualified by the advocate’s duty of candor to the tribunal.” This duty exists even in circumstances in which the attorney contends that the authority is distinguishable or the statute unconstitutional. The appropriate course of action is to cite to the adverse authority, and, then, explain why it is not binding.
It is, then, an unremarkable proposition to state that a lawyer may not knowingly provide false statements of the content of legal authority to a court. For example, in Cofield v. Va. State Bar ex rel. Second Dist. Comm., 2019 Va. LEXIS 52, (Va. May 30, 2019), the Virginia Supreme Court addressed an appeal from discipline imposed against an attorney related to statements made to a circuit court in a discovery dispute. Specifically, the attorney objected to the payment of a fee associated with seeking access from a non-party to the plaintiff’s electronic health records.  In her motion, the attorney argued that the Health Insurance Portability and Accountability Act and regulations promulgated thereunder prohibited a health care provider from charging a fee and provided language ostensibly from the applicable regulation supporting her position.
As noted by the Supreme Court:
The trial court judge presiding over the malpractice case reviewed [the attorney’s] pleadings and found that only the first four costs enumerated in the list were supported by the cited C.F.R. provisions. In a letter to [the attorney] and the hospital’s attorney, the judge wrote: “My copy of 45 C.F.R. § 164.524(c)(3) and (4), which I presume to be the section that was intended to be cited, includes the first four items on the lists cited above. It does not make any mention of the fifth item, which is obviously the one that would be germane to the instant motion.” The judge went on to note:
My law clerk and I have been unable to locate any authority whatsoever to support the assertion that a provider may charge the fee described in what is cited as subparagraph (5) only if the [protected health information or PHI] is not maintained in a portal. In fact, we find nothing in the statute or regulations that even mentions a portal.
Because [the attorney] specifically quoted and cited the regulation and included a subparagraph that we cannot find, I need some clarification. Are we looking at the wrong regulation? Was it mis-cited or cited in error? I would appreciate a written response from each of you.
In response, [the attorney] submitted what she titled “Plaintiff’s Clarification.” This clarification comprised only a highlighted printout of a “Questions and Answers” section of the [United States Department of Health and Human Services or HHS] website discussing permissible fees for providing access to PHI. She did not include a signed pleading, brief, or any sort of narrative explanation in reply to the judge’s request for a “written response.” The printout contained the language used in subparagraph (5) of [the attorney’s] pleadings that the citation clause attributed to “CFR 164.524(c)(3) and (4).”
Ultimately, the trial court denied the attorney’s motion, concluded that the motion contained “misrepresentations of the text” of the regulation and filed a complaint against the attorney with the Virginia State Bar. A three-judge panel considered the disciplinary charges and:
unanimously found under the clear and convincing evidentiary standard that the manner Respondent presented the language from the HHS website in her pleadings was intentional and constituted knowingly false statements of the content of 45 C.F.R. § 164.524(c)(4), in that she presented that language as a sequentially numbered subpart of the C.F.R. along with the four actual numbered subparts of the C.F.R. and cited to the C.F.R. but made no citation or reference to the HHS website—all with knowledge that the C.F.R. did not contain that language or a fifth subpart and that the HHS website was the source of that language—in violation of [Rule 3.3(a)(1)].
And the outcome? The three-judge panel imposed an admonition as the appropriate sanction for the attorney’s conduct, which the Supreme Court affirmed by published order.
Jeff Geiger assists attorneys and law firms with ethics and professional responsibility matters. If you have any questions about this post or other issues, please contact Jeff at (804) 783-7248 or jgeiger@sandsanderson.com.
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