Fried v Village of Patchogue
Annotate this CaseDecided on March 13, 2006
Supreme Court, Suffolk County
Tanina Fried and Kenneth Fried, Plaintiffs,
against
Village of Patchogue, Town of Brookhaven and County of Suffolk, Defendants.
20256-2005
Outgoing Attorney for Plaintiffs
Weinreb & Associates, PLLC
475 Sunrise Highway
West Babylon, New York 11704-6017
Tatini Fried and Kenneth Fried, Pro se
31 Valley Road
Patchogue, New York 11772
Attorney for Defendant the Village of Patchogue
Donohue, Mcgahan & Catalano
555 North Broadway
P.O. Box 350 Jericho, New York 11753
Attorney for Defendant the Town of Brookhaven
Lewis, Johs Avallone, Aviles, LLP
425 Broadhollow Road, Suite 400
Melville, New York 11747-4712
Attorney for Defendant the County of Suffolk
Suffolk County Attorney
Christine Malif, Esq.
100 Veterans Memorial Highway
P.O. Box 6100
Hauppauge, New York 11788-0099
Emily Pines, J.
Alan H. Weinrib, Esq., counsel for the named Plaintiffs in this tort action, has moved to withdraw as counsel for Plaintiffs pursuant to CPLR § 321 (b). The action arises out of injuries resulting from a slip and fall as a result of alleged negligent ownership, operation and/or maintenance of a public roadway by the named municipal Defendants. Plantiffs' counsel sets forth no specific grounds for his request, but states that he is ready to submit to an in camera interview with the Court, should the Court wish to learn the cause. The Plaintiffs have submitted no papers in opposition.
However, an attorney for one of the named municipal Defendants, THE VILLAGE OF PATCHOGUE, has submitted an Affirmation requesting that the Court grant counsel's request for an in camera interview to determine "[w]hether plaintiffs' attorneys are in possession of any information with regard to their client's claimed accident and/or the claimed injuries, which information is not protected by the attorney/client privilege, information being received by the attorney through a source other that (sic) directly from his clients." Defendant's counsel goes on to state, "[s]uch a source could be an independent witness, documents or records searched and located, conversations had with a third-party and relayed directly to the attorney or the attorney's representative, information relayed to plaintiffs' attorneys through a representative of a defendant, or an un-related third-party, etc".
Although this action is at the relatively early stages, Plaintiffs' attorney has served and filed a Summons and Verified Complaint (August 18, 2005) and has served on all parties to the action a Verified Bill of Particulars, setting forth in some detail the alleged causes of the accident and the injuries suffered by the Plaintiffs (November 4, 2005).
Although no party or attorney opposes the application to withdraw submitted by Plaintiffs' counsel, both the manner in which the request by Plaintiffs' counsel is presented to the Court and the responsive papers submitted on behalf of one of the named Defendants have raised issues which the Court believes should be addressed. These include, inter alia, the interplay between an attorney's duty to prevent fraud from being perpetrated on the tribunal or on a third party and the often conflicting responsibility to preserve the confidences and secrets of a client.
OBLIGATION TO REFRAIN FROM ASSISTING CLIENT IN FRAUDULENT CONDUCT
DR 7-102 of the Code of Professional Responsibility sets forth the obligations of an attorney, who learns that his client has submitted false statements and/or information in the course of representation. In pertinent part, DR 7-102(A)(6) prevents an attorney from participating in the "[c]reation or preservation of evidence when the lawyer knows or it is obvious that the evidence is false". Pursuant to DR 7-102 (A)(7), a lawyer must refrain from "[c]ounsel[ing] or assist[ing] the client in conduct that the lawyer knows to be illegal or [where] it is obvious that the evidence is false".
These obligations are all the more significant for the lawyer in view of the provisions of the Rules of the Chief Administrator, which now mandate that all pleadings, motions and papers served [*2]on other parties and/or filed with the court be signed by the attorney [22 NYCRR § 130-1.1-a(a)], and which provide that the attorney's signature on a litigation paper constitutes counsel's certification as to the accuracy of the contents of the papers. 22 NYCRR § 130-1.1-a(b). While the provisions of the above rules do not require that the attorney attest to the truth of the contents of served and/or filed papers, the counsel's signature does warrant that the allegations in the papers are not "frivolous", to the best of counsel's knowledge following reasonable inquiry. Id. Any paper that "[a]sserts material factual statements that are false" is considered frivolous. 22 NYCRR § 130-1.1 (c)(3). Moreover, the Court may consider as a factor in reaching this determination, whether such false statements continue after the attorney learned of the lack of factual basis. 22 NYCRR § 130-1.1. An attorney found to have violated this provision is subject to sanctions. 22 NYCRR § 130-1.2.
From a practical perspective, there are times, at the commencement of a litigation, where the attorney has had little opportunity for review of papers submitted on behalf of his client prior to commencing an action and/or filing and serving an Answer. However, in the context of a civil litigation, there exists a continuing obligation not only to participate in disclosure (CPLR 3101); but, also to supplement any and all responses provided where the party finds that a previous submission was incomplete and/or incorrect when made. CPLR § 3101(h).
When the attorney receives information clearly demonstrating that "[t]he client has, in the course of the representation, perpetrated a fraud upon a person or tribunal", the lawyer is directed to contact his client and instruct him to rectify the fraud. DR 7-102 (B)(1). However, when the client fails and/or refuses to do so, the lawyer must reveal the fraud to the third person or to the tribunal "[e]xcept when the information is protected as a confidence or secret".
As set forth by Professor Patrick M. Connors, once the client fails and/or refuses to correct the incomplete and/or incorrect information as advised by his attorney, the attorney would generally be required to seek to withdraw as counsel under the dictates of DR 2-110. DR 2-110 (B)(2) directs an attorney to move to withdraw where continued employment would result in violation of a disciplinary rule. As stated by Connors, "[i]n any event, a motion for withdrawal does not resolve the lawyer's dilemma. Even if the court grants the motion, the lawyer's certification . . . lingers, exposing the lawyer to sanctions in the future" . Patrick M. Connors, Preservation of the Confidences and Secrets of a Client, Code of Prof. Resp., DR 4-101 McK. Consol. Laws, Book 29 App. (2006).
OBLIGATION TO PRESERVE THE CONFIDENCES
AND SECRETS OF A CLIENT
Absent a client's consent following full disclosure, in most instances an attorney must not divulge his client's confidences and secrets. DR 4-101. While the term "confidences" is defined as "[i]nformation protected by the attorney-client privilege under applicable law" (DR 4-101 (A)), the term "secret" has a far broader meaning. A secret under the Code of Professional Responsibility includes "[o]ther information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client". Id.
The above definition speaks directly to the statements made in the papers submitted in this case by Defendant's counsel. It is entirely possible that information received by the Plaintiffs' counsel that has convinced him to apply to withdraw was not received by him through the attorney client relationship; but, rather, as suggested by Defendant's attorney, through some third party or [*3]other source. This does not make the information disclosable under the Code.
However, some guidance is offered the beleaguered attorney, in the wording of DR4-101 (C)(5). That provision permits an attorney to reveal a confidence or secret of his client "[t]o the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud".
The manner of accomplishing the goal set forth in DR 4-101 (C)(5) is described most eloquently in a formal opinion issued by the New York Bar Association Committee on Professional Ethics. Although NY State 781 (2004) concerns a financial statement certified by counsel on behalf of a client under 22 NYCRR § 202.16(b) relating to matrimonial actions, the provisions of 22 NYCRR § 130-1.1(a) certainly render the opinion relevant to any civil litigation in which counsel serves and/or files papers on behalf of his client and subjects himself to the potential sanctions threatened under its rubric.
As suggested in the opinion, the lawyer's only recourse is found in the language of DR 4-101 (C)(5), which permits the attorney to withdraw any "[w]ritten or oral representation previously given by the attorney where the attorney finds that two conditions have been met. These are first, that such representation was based on "[m]aterially inaccurate information or is being used to further a . . . fraud" and second, that the lawyer believes is such representation still being "[r]elied upon by a third person". Id.
Thus, while the above cited provision allows the attorney to withdraw any paper containing such materially inaccurate information, it does not permit the lawyer to inform either the court or the parties specifically that papers submitted by him on behalf of his client are false or fraudulent as set forth. While it may appear obvious that the act of withdrawing a pleading, a Bill of Particulars, answers to interrogatories, and/or deposition testimony certainly signals to the court and to the other parties to litigation that such materials are false, the Code permits this much. It does not, however, permit the withdrawing attorney to set forth specifically either to his adversary or indeed to the Court (absent Court order not relevant to this discussion) to specify the reason for the withdrawal of the paper absent his client's consent.
THE LAWYER'S DILEMMA
Given the above cited restrictions, directives, and the one permissive (non-mandatory) avenue of disclosure, the attorney faces a difficult decision. It appears, based on the advice set forth in NY State 781, that the favored avenue to be followed by the attorney is one, to withdraw any materially false statements and documents to the extent that they bear his certification; and two, to move to withdraw as attorney for the recalcitrant client without disclosing more than is implied by the prior act.
Applying the above principles to the case at Bar, the Court grants the motion on behalf of the attorney for the Plaintiffs pursuant to CPLR §321(b) and stays all further proceedings for a period of thirty (30) days following service of a copy of this order with Notice of Entry on Plaintiff and counsel for all parties in order to afford Plaintiffs the opportunity to obtain new counsel. The Court accepts counsel's offer to meet in camera prior to institution of the stay within thirty (30) days from receipt of this Order. However, the Court directs Plaintiffs' attorney to familiarize himself with the provisions of the Code of Professional Responsibility set forth herein and to make the difficult but [*4]wise decision to abide by the dictates of the Code as interpreted by N.Y State 781 to the extent it is applicable. For these reasons, should the actual facts warrant counsel's silence and mandate merely withdrawal of a submitted and/or served paper, once accomplished, the Court will not direct counsel to make such underlying information available either to the Court or to Defendants' counsel as requested.
This constitutes the DECISION and ORDER of the Court.
Dated: March 13, 2006________________________
Riverhead, New YorkHon. Emily Pines
J. S. C.
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