f/k/a . . . the archives

April 22, 2004

More on the Silent Associate

Filed under: pre-06-2006 — David Giacalone @ 11:31 am

trust me Excuses, excuses. Reaction to the April 7th Daniels v. Alander decision out of Connecticut has not exactly been edifying. We posted on the case two weeks ago and generated an interesting thread of commentary. Last week, it was also covered in the ABA Journal eReport, in an article titled “To Tell the Truth — and Dispute the Boss: Court Reprimands Attorney for Not Correcting ‘Misstatements’.” (Thanks to John at LegalReader for the pointer.)

In an unanimous decision on the scope of ethical Rule 3.3 [Candor Toward the Tribunal ], the Conn. Supreme Court held (emphasis added) that

Depending upon the circumstances, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”

The Court has not carved out an inflexible, draconian standard of associate omniscience and vigilance. Please let me sum up its ruling:

Mr. or Ms. Lawyer, there will be times when your knowledge that the tribunal is being misled will require you, as an officer of the court, to find a way to correct a misconception created in your presence, even when you are junior in status to the lawyer misleading the court. One of those times is when – in the words of the lower Appellate Court decision (April 2003) — “co-counsel made any number of misstatements about facts that purportedly came, and under the circumstances of this case, could only have come, from [your] own personal observations and knowledge of events that occurred outside of the court’s presence. “



 


As I opined on April 8th, the correctness of this principle seems obvious (and there should be no de minimis exception if the point is material). Instead of hearing strong, loud encouragement for junior associates to do the right thing, even though it may often take some courage, we hear a chorus of excuses — cowardly catastrophizing and downright distortion about the scope of the court’s interpretation of Rule 3.3.

monkey cellphone .. hear no evil, . . .

 

According to the ABA Journal, a young associate who requests anonymity moans that, in practice, being truthful is “basically committing professional suicide” –”explaining that if a young associate in her old firm raised ethical issues, the partners tended to ‘look at you as if you had four heads.’” Well, having four heads is preferable, I believe, to having no backbone. Talk of instant professional suicide is silly — (1) losing such a job is not losing your profession, but would instead be keeping your professionalism alive; (2) it assumes an automatic degree of veniality in your bosses that even skepticalEsq won’t ascribe to them; and (3) it suggests that a job with a bunch of ethics scofflaws is worth nurturing.

  • The article notes that reprimanded associate “Driscoll himself says his former boss, who no longer practices law, would not have been angry if Driscoll corrected him.”

Driscoll’s lawyer Kevin A. Votre turns the obligation into a farce, asking how many associates are going to “jump up and say, ‘He’s not telling the truth, your honor’?” My reply: no associate with any sense would do it that way — and if he or she did, the foolish lack of discretion would jeopardize the job more than the correction of the misstatement. As ethics professor Geoffrey C. Hazard Jr., advises in the article,

“It’s obviously very, very tough,” Hazard says. “The kid, the younger lawyer, certainly should be very clear and ought to tug at the senior attorney’s coattails and see the judge in chambers afterward–make it as nonconfrontational as possible.”

Lawyer Votre also mis-interprets the Court’s ruling: “But associates are going to be in a tough position to make judgment calls. There has to be some relief from that rule. Maybe if you have a good-faith belief the lawyer is telling the truth?” Sorry, Votre, but the Driscoll Court clearly is not saying that Rule 3.3 would be violated when the silent lawyer has a good-faith belief the lawyer is telling the truth. Maybe we need an ethics rule about lawyers misleading the media and the public.

prof yabut small Senior lawyers need to let their juniors know that you expect and want candor. Juniors need to remember that ethics rules apply even when it takes courage to comply. Being a lawyer is special and does entail special obligations.

28 Comments

  1. You previously asked me, “Would you be willing to set such a low standard of honesty for lawyers, if you had to put your name to this Comment?”

    My answer: I don’t consider this a “low standard of honesty,” and if I wanted to put my name to the Comment, I would have. I am an attorney but I am also an employee, with a responsibility to provide for my family. I am not in a position to jeopardize my livelihood by making on-the-spot, unilateral decisions to confront my boss, accusing him of lying in live court on the record, and destroy his reputation in a matter of seconds. (Perhaps you enjoy this privilege given your career status. I’m glad for you, but we speak from different vantage points).

    Frankly, lawyers who make such drastic and life-changing decisions without giving themselves adequate time to reflect and deliberate are probably prone to committing malpractice sooner or later. Tell me, what is wrong with going back to the office with one’s boss, and discussing the matter in private? Perhaps this will show the boss that his associate is not willing to tow the line, and together they can formulate an ethical correction to the original misrepresentation that will not devastate the client (who is an innocent bystander). Is it so hard to file a Notice of Errata? On the other hand, if the associate confronts the boss privately and the latter still refuses to budge, the associate now has a clear duty to take independent action, probably starting with consulting another partner or senior associate. I see absolutely no reason why this process has to take place within a matter of seconds, rather than allowing reasoned thinking, deliberation and discussion. Only in Hollywood movies do courts not have the freedom to go back and undo judicial decisions 2 days after the original ruling. Real life is quite different.

    Comment by UCL — April 22, 2004 @ 12:42 pm

  2. You previously asked me, “Would you be willing to set such a low standard of honesty for lawyers, if you had to put your name to this Comment?”

    My answer: I don’t consider this a “low standard of honesty,” and if I wanted to put my name to the Comment, I would have. I am an attorney but I am also an employee, with a responsibility to provide for my family. I am not in a position to jeopardize my livelihood by making on-the-spot, unilateral decisions to confront my boss, accusing him of lying in live court on the record, and destroy his reputation in a matter of seconds. (Perhaps you enjoy this privilege given your career status. I’m glad for you, but we speak from different vantage points).

    Frankly, lawyers who make such drastic and life-changing decisions without giving themselves adequate time to reflect and deliberate are probably prone to committing malpractice sooner or later. Tell me, what is wrong with going back to the office with one’s boss, and discussing the matter in private? Perhaps this will show the boss that his associate is not willing to tow the line, and together they can formulate an ethical correction to the original misrepresentation that will not devastate the client (who is an innocent bystander). Is it so hard to file a Notice of Errata? On the other hand, if the associate confronts the boss privately and the latter still refuses to budge, the associate now has a clear duty to take independent action, probably starting with consulting another partner or senior associate. I see absolutely no reason why this process has to take place within a matter of seconds, rather than allowing reasoned thinking, deliberation and discussion. Only in Hollywood movies do courts not have the freedom to go back and undo judicial decisions 2 days after the original ruling. Real life is quite different.

    Comment by UCL — April 22, 2004 @ 12:42 pm

  3. Thanks for continuing the dialogue, U.   I don’t think that what is honest or “ethical” depends on one’s “vantage point,” or changes with one’s family obligations or career status; with the venality of one’s boss; or with potential consequences to the person who speaks or fails to speak.
    You seem to be using more catastrophism and inapt examples in order to decry the ruling, and to avoid both my arguments and the actual situation before the court.  The facts of this case are very limiting, and the application of the ruling to the silent associate would be extremely rare.  There is nothing in this court’s opinion that would require you to rudely, joltingly “confront” your boss, “accusing him of lying in live court on the record, and destroy his reputation in a matter of seconds.”  

    In fact, I would hope that (a) you would assume the boss was making an honest mistake and would want to be reminded; and (b)your boss would thank you for a gentle tug on his coattails or a note of explanation [unless he had said before hand, "I don't want the judge talking to you directly; you're a bad liar, and he might figure out how poor our facts are."  In that case, you might have a confrontation, but it would be even more important that you not allow the fraud on the court, as your silence would make you a conspirator.]
    The associate unable to find a non-confrontational way to correct the court’s misperception should perhaps find a career where advocacy and people skills are unnecessary.   You are absolutely correct that many — probably most — situations would allow the associate and senior lawyer to work out the problem back at the office, in an ethical manner.   Some situations might require quick action that can’t wait for the lawyers to return to their offices (e.g., at times on the spot, because the judge is immediately making an emergency decision; sometimes regrouping in the lawyer lounge and asking for a few additional moments with the judge).  Nothing in the Driscoll opinion requires guns-blazing accusations as a first response to co-counsel’s mis-stating your own conversation with another person.  [It is also very unlikely that this particular emergency hearing was taking place in front of a large crowd, with strict formality that would not permit a subtle intervention by the associate.]

    If you were employed by a**h*le lawyers who you feel would fire you for pointing out a mis-statement, I certainly hope you’d be looking for new employment.  It’s one thing to allow golden (or even tin) handcuffs to tie you to a job that doesn’t make your spirit soar (due to family obligations), but quite another to allow them to keep you among the ethically challenged. 
    I continue to believe that the standard you are setting for candor to the court is low, too low for officers of the court.   The very limited ruling in Driscoll will upset very few associate’s careers, and might win them an important reputation for honesty.   I think a lawyer unwilling to risk his or her job in order to assert an ethical principle dishonors the profession, perpetuating and nurturing an environment where future ethical violations can and will flourish. 
     

    Comment by David Giacalone — April 22, 2004 @ 2:30 pm

  4. Thanks for continuing the dialogue, U.   I don’t think that what is honest or “ethical” depends on one’s “vantage point,” or changes with one’s family obligations or career status; with the venality of one’s boss; or with potential consequences to the person who speaks or fails to speak.
    You seem to be using more catastrophism and inapt examples in order to decry the ruling, and to avoid both my arguments and the actual situation before the court.  The facts of this case are very limiting, and the application of the ruling to the silent associate would be extremely rare.  There is nothing in this court’s opinion that would require you to rudely, joltingly “confront” your boss, “accusing him of lying in live court on the record, and destroy his reputation in a matter of seconds.”  

    In fact, I would hope that (a) you would assume the boss was making an honest mistake and would want to be reminded; and (b)your boss would thank you for a gentle tug on his coattails or a note of explanation [unless he had said before hand, "I don't want the judge talking to you directly; you're a bad liar, and he might figure out how poor our facts are."  In that case, you might have a confrontation, but it would be even more important that you not allow the fraud on the court, as your silence would make you a conspirator.]
    The associate unable to find a non-confrontational way to correct the court’s misperception should perhaps find a career where advocacy and people skills are unnecessary.   You are absolutely correct that many — probably most — situations would allow the associate and senior lawyer to work out the problem back at the office, in an ethical manner.   Some situations might require quick action that can’t wait for the lawyers to return to their offices (e.g., at times on the spot, because the judge is immediately making an emergency decision; sometimes regrouping in the lawyer lounge and asking for a few additional moments with the judge).  Nothing in the Driscoll opinion requires guns-blazing accusations as a first response to co-counsel’s mis-stating your own conversation with another person.  [It is also very unlikely that this particular emergency hearing was taking place in front of a large crowd, with strict formality that would not permit a subtle intervention by the associate.]

    If you were employed by a**h*le lawyers who you feel would fire you for pointing out a mis-statement, I certainly hope you’d be looking for new employment.  It’s one thing to allow golden (or even tin) handcuffs to tie you to a job that doesn’t make your spirit soar (due to family obligations), but quite another to allow them to keep you among the ethically challenged. 
    I continue to believe that the standard you are setting for candor to the court is low, too low for officers of the court.   The very limited ruling in Driscoll will upset very few associate’s careers, and might win them an important reputation for honesty.   I think a lawyer unwilling to risk his or her job in order to assert an ethical principle dishonors the profession, perpetuating and nurturing an environment where future ethical violations can and will flourish. 
     

    Comment by David Giacalone — April 22, 2004 @ 2:30 pm

  5. I stand by my original comment, not necessarily your characterization of it.

    I must disagree with your comment on the original post that the associate “brought the notoriety on himself” by appealing and not accepting the reprimand. Reasonable minds can differ on this case, as demonstrated by the responses to your post. I have not even made up my own mind on this case. I think it is worthy of an appeal. If the results of a (potentially) successful appeal are worse than the initial punishment, then it is a hollow remedy.

    Comment by Peter Swanson — April 22, 2004 @ 9:20 pm

  6. I stand by my original comment, not necessarily your characterization of it.

    I must disagree with your comment on the original post that the associate “brought the notoriety on himself” by appealing and not accepting the reprimand. Reasonable minds can differ on this case, as demonstrated by the responses to your post. I have not even made up my own mind on this case. I think it is worthy of an appeal. If the results of a (potentially) successful appeal are worse than the initial punishment, then it is a hollow remedy.

    Comment by Peter Swanson — April 22, 2004 @ 9:20 pm

  7. David: The fact that I am an attorney of high ethics and morals, who believes strongly in the honor and nobility of my profession, is enough evidence to me that your alarmist cries about my viewpoint aren’t really based on reality. In other words, save your sermon for the sinners. The Driscoll opinion is indeed “limited”, as you concede, in addition to being legally wrong. It is a foolish enough opinion that I doubt it will be followed by other courts, or treated with respect by future Connecticut courts dealing with similar issues.

    Being the talented lawyer that you are, you attempt to soften the tone of the implications of the opinion, suggesting that “There is nothing in this court’s opinion that would require you to rudely, joltingly ‘confront’ your boss”. To the contrary, the opinion quite clearly condemns Driscoll for failing to do exactly that:

    “[Driscoll] failed to correct Daniels’ false statement concerning Davis’ opinion when it was made to the court in his presence.”

    and

    “Driscoll remained silent while Daniels recounted details about Driscoll’s telephone conversation with Davis.”

    and

    “We know of no impediment that prevented Driscoll, counsel appearing on behalf of the
    movant in an ex parte proceeding, from correcting any alleged misstatement…”

    and

    “Driscoll would have upheld his duty of candor to the court by simply addressing the court himself to remedy the misstatement or by addressing his cocounsel and informing him to do so.”

    Compounding the pragmatic foolishness of such rationale is the court’s legal error. A lawyer has a duty of “candor toward the tribunal” while making representations to the court. A lawyer who is not even making representations to the court, which Driscoll was not, cannot be penalized for lack of candor as a matter of logic. Of course, what happened to Driscoll triggered an entirely SEPARATE duty, namely the duty to report the known unethical conduct of another lawyer. To comply with this duty, the responsible thing for Driscoll to do would have been to meet with Daniels, and urge him to rectify his ethical lapse. Failing that, Driscoll should have immediately consulted other co-counsel such as a partner, and taken appropriate action to report Daniels’ conduct to the court and to the bar, while simultaneously taking steps to make sure that their innocent client (and the small children involved) were not harmed as a result of Daniels’ misbehavior.

    The court ignored that progression of steps Driscoll could have taken.

    Comment by UCL — April 22, 2004 @ 9:27 pm

  8. David: The fact that I am an attorney of high ethics and morals, who believes strongly in the honor and nobility of my profession, is enough evidence to me that your alarmist cries about my viewpoint aren’t really based on reality. In other words, save your sermon for the sinners. The Driscoll opinion is indeed “limited”, as you concede, in addition to being legally wrong. It is a foolish enough opinion that I doubt it will be followed by other courts, or treated with respect by future Connecticut courts dealing with similar issues.

    Being the talented lawyer that you are, you attempt to soften the tone of the implications of the opinion, suggesting that “There is nothing in this court’s opinion that would require you to rudely, joltingly ‘confront’ your boss”. To the contrary, the opinion quite clearly condemns Driscoll for failing to do exactly that:

    “[Driscoll] failed to correct Daniels’ false statement concerning Davis’ opinion when it was made to the court in his presence.”

    and

    “Driscoll remained silent while Daniels recounted details about Driscoll’s telephone conversation with Davis.”

    and

    “We know of no impediment that prevented Driscoll, counsel appearing on behalf of the
    movant in an ex parte proceeding, from correcting any alleged misstatement…”

    and

    “Driscoll would have upheld his duty of candor to the court by simply addressing the court himself to remedy the misstatement or by addressing his cocounsel and informing him to do so.”

    Compounding the pragmatic foolishness of such rationale is the court’s legal error. A lawyer has a duty of “candor toward the tribunal” while making representations to the court. A lawyer who is not even making representations to the court, which Driscoll was not, cannot be penalized for lack of candor as a matter of logic. Of course, what happened to Driscoll triggered an entirely SEPARATE duty, namely the duty to report the known unethical conduct of another lawyer. To comply with this duty, the responsible thing for Driscoll to do would have been to meet with Daniels, and urge him to rectify his ethical lapse. Failing that, Driscoll should have immediately consulted other co-counsel such as a partner, and taken appropriate action to report Daniels’ conduct to the court and to the bar, while simultaneously taking steps to make sure that their innocent client (and the small children involved) were not harmed as a result of Daniels’ misbehavior.

    The court ignored that progression of steps Driscoll could have taken.

    Comment by UCL — April 22, 2004 @ 9:27 pm

  9. Hello, again, UCL.   Let me ask you one question: 

    Have you ever been in a hearing where co-counsel has mis-spoken?  Were you able to communicate with said co-counsel about the mistake in a manner that neither caused a scene that instantly ruined the lawyer’s reputation, nor placed your job in immediate jeopardy? 

    This is the wrong place to come if you never want to hear a sermon.  I’ll let my readers decide who is being alarmist on this case.
     

    Comment by David Giacalone — April 23, 2004 @ 10:40 am

  10. Hello, again, UCL.   Let me ask you one question: 

    Have you ever been in a hearing where co-counsel has mis-spoken?  Were you able to communicate with said co-counsel about the mistake in a manner that neither caused a scene that instantly ruined the lawyer’s reputation, nor placed your job in immediate jeopardy? 

    This is the wrong place to come if you never want to hear a sermon.  I’ll let my readers decide who is being alarmist on this case.
     

    Comment by David Giacalone — April 23, 2004 @ 10:40 am

  11. I don’t recall characterizing your original Comment on this case, Peter, but would welcome any further explanations you might have.

    Comment by David Giacalone — April 23, 2004 @ 10:44 am

  12. I don’t recall characterizing your original Comment on this case, Peter, but would welcome any further explanations you might have.

    Comment by David Giacalone — April 23, 2004 @ 10:44 am

  13. Hello, David. Point well taken about hearing a sermon. And I won’t forget that this is your soap box, not mine. :)

    By “misspoken” do you mean deliberately (as with Driscoll), or inadvertently? I have been to hearings where counsel have made mistakes. I have corrected other counsel’s mistakes, even when their mistake was favorable to me. I have corrected my own mistakes. I have also told the court, “Your Honor, I simply don’t know”, and seen other counsel do it also.

    I have never been to a hearing where counsel, especially co-counsel, deliberately lied. If that were to happen… well, there’s no sense in repeating myself. See above comments as to the proper course of action.

    Comment by UCL — April 23, 2004 @ 12:43 pm

  14. Hello, David. Point well taken about hearing a sermon. And I won’t forget that this is your soap box, not mine. :)

    By “misspoken” do you mean deliberately (as with Driscoll), or inadvertently? I have been to hearings where counsel have made mistakes. I have corrected other counsel’s mistakes, even when their mistake was favorable to me. I have corrected my own mistakes. I have also told the court, “Your Honor, I simply don’t know”, and seen other counsel do it also.

    I have never been to a hearing where counsel, especially co-counsel, deliberately lied. If that were to happen… well, there’s no sense in repeating myself. See above comments as to the proper course of action.

    Comment by UCL — April 23, 2004 @ 12:43 pm

  15. A classic concern about sins of ommission versus sins of commission. I’m torn. I know there are attorneys out there who would not take kindly to my candor in that situation; I’ve dealt with a number of them.

    Screw them.

    Of course, I have no one to provide for but myself, so I’m not confronted with a serious dilemma.

    Comment by Scipio — April 23, 2004 @ 12:44 pm

  16. A classic concern about sins of ommission versus sins of commission. I’m torn. I know there are attorneys out there who would not take kindly to my candor in that situation; I’ve dealt with a number of them.

    Screw them.

    Of course, I have no one to provide for but myself, so I’m not confronted with a serious dilemma.

    Comment by Scipio — April 23, 2004 @ 12:44 pm

  17. I’m glad you stopped by again, UCL.  As is often the case (and I learned this as a mediator), two people are often much closer together on an issue than they each believe (or act)  – because they are stressing the differences and not hearing the shared views and values.  I like doing weblogging a whole lot better when I and my visitors remember to stay civil, and I shall strive to do so. 
    I purposely phrased the question as “mis-spoke,” because initially treating co-counsel’s statement without characterizing its intention allows the junior attorney to make a non-confrontational inquiry, suggestion, amendment.  If the reminder of the error does not get co-counsel to amend his or her remarks, the junior attorney has to decide on a course of action, which will totally depend upon the circumstances, but will normally allow for regrouping out of the judge’s earshot and off the record.
    If the court needs to be immediately set straight because it is at that moment acting on the information in a way that significantly affects the parties or the outcome, the junior might need to act immediately, but that can and should still be done diplomatically.  As you have suggested the need for an instantaneous correction of co-counsel’s statement is going to be rare, which is why I do not believe Driscoll will have dramatic, widespread negative effects on the careers of junior associates — but, it might indeed keep all co-counsel a bit more honest.  [

    An “emergency” session is relatively rare; even more rare is co-counsel relating to the court facts only directly known by the associate; also, the court stressed that the deception was made in the junior associate’s presence, not that the correction needs to be made in the senior associate’s presence.
    As you might have noticed, I’m as cynical as the next guy about our judiciary and our profession, but I do believe that in the vast majority of situations, judges attempt to apply rules in ways that make sense under the circumstances; and, I believe that most lawyers are honest most of the time. 

    Comment by David Giacalone — April 23, 2004 @ 2:05 pm

  18. I’m glad you stopped by again, UCL.  As is often the case (and I learned this as a mediator), two people are often much closer together on an issue than they each believe (or act)  – because they are stressing the differences and not hearing the shared views and values.  I like doing weblogging a whole lot better when I and my visitors remember to stay civil, and I shall strive to do so. 
    I purposely phrased the question as “mis-spoke,” because initially treating co-counsel’s statement without characterizing its intention allows the junior attorney to make a non-confrontational inquiry, suggestion, amendment.  If the reminder of the error does not get co-counsel to amend his or her remarks, the junior attorney has to decide on a course of action, which will totally depend upon the circumstances, but will normally allow for regrouping out of the judge’s earshot and off the record.
    If the court needs to be immediately set straight because it is at that moment acting on the information in a way that significantly affects the parties or the outcome, the junior might need to act immediately, but that can and should still be done diplomatically.  As you have suggested the need for an instantaneous correction of co-counsel’s statement is going to be rare, which is why I do not believe Driscoll will have dramatic, widespread negative effects on the careers of junior associates — but, it might indeed keep all co-counsel a bit more honest.  [

    An “emergency” session is relatively rare; even more rare is co-counsel relating to the court facts only directly known by the associate; also, the court stressed that the deception was made in the junior associate’s presence, not that the correction needs to be made in the senior associate’s presence.
    As you might have noticed, I’m as cynical as the next guy about our judiciary and our profession, but I do believe that in the vast majority of situations, judges attempt to apply rules in ways that make sense under the circumstances; and, I believe that most lawyers are honest most of the time. 

    Comment by David Giacalone — April 23, 2004 @ 2:05 pm

  19. I think the only point I could add to this saturated (but very interesting) discussion on this issue is one I only barely touched upon before: the harm to the client.

    The associate’s actions at this hearing could have had serious, grave consequences for the mother and especially for two small children who faced the threat of a physically abusive father. Even if you can make the argument that the ethical rules on candor required prompt and immediate action by the associate (which I maintain you cannot), there is no question that the associate’s duty of loyalty and competent representation of the mother independently prohibited him from jeopardizing the judge’s ruling by making an on-the-spot decision to confront his co-counsel.

    Frankly, and very ironically (given the overall purpose of your blog), the court’s analysis of this entire issue completely ignores the most important guiding factor of all: the client.

    Comment by UCL — April 23, 2004 @ 3:01 pm

  20. I think the only point I could add to this saturated (but very interesting) discussion on this issue is one I only barely touched upon before: the harm to the client.

    The associate’s actions at this hearing could have had serious, grave consequences for the mother and especially for two small children who faced the threat of a physically abusive father. Even if you can make the argument that the ethical rules on candor required prompt and immediate action by the associate (which I maintain you cannot), there is no question that the associate’s duty of loyalty and competent representation of the mother independently prohibited him from jeopardizing the judge’s ruling by making an on-the-spot decision to confront his co-counsel.

    Frankly, and very ironically (given the overall purpose of your blog), the court’s analysis of this entire issue completely ignores the most important guiding factor of all: the client.

    Comment by UCL — April 23, 2004 @ 3:01 pm

  21. No client has the right to win a motion or a case by deceiving the court.  “I did it for my client’s sake” is often both the first and last refuge of the unethical lawyer. 
    If the court had the benefit of the junior associate’s better knowledge of the facts, it might very well have asked more questions that would have satisfied it to take emergency action despite the shenanighans of the senior associate.

    Comment by David Giacalone — April 23, 2004 @ 4:23 pm

  22. No client has the right to win a motion or a case by deceiving the court.  “I did it for my client’s sake” is often both the first and last refuge of the unethical lawyer. 
    If the court had the benefit of the junior associate’s better knowledge of the facts, it might very well have asked more questions that would have satisfied it to take emergency action despite the shenanighans of the senior associate.

    Comment by David Giacalone — April 23, 2004 @ 4:23 pm

  23. In response to your post responding to my post, I was objecting to such characterizations as “excuses, excuses.” I believe reasonable minds can differ about this case.

    Comment by Peter Swanson — April 26, 2004 @ 11:23 am

  24. In response to your post responding to my post, I was objecting to such characterizations as “excuses, excuses.” I believe reasonable minds can differ about this case.

    Comment by Peter Swanson — April 26, 2004 @ 11:23 am

  25. Being the associate who was the subject of the appeal, Daniels v. Alander, 75 Conn. App. 864, 818 A.2d 106 (2003), there are some pertinent and interesting facts that should be made known to the readers.

    I began working for Attorney Douglas Daniels in March of 2000. The week that I began, I ran into Judge Jon Alander while walking on the street. I had previously clerked for the Judge and had a friendly relationship. Judge Alander asked me what I was doing and I informed him of my association with Attorney Daniels. Judge Alander advised me that Attorney Daniels had a number of grievances pending against him and that I should be careful. I told the Judge that Attorney Daniels had asked me to join him as a partner but I declined because of my knowledge of these grievances. Attorney Daniels had the reputation of being a good trial attorney but being unorganized with his office management.

    In January of 2001, Ines Montalvo hired Douglas Daniels to represent her on an emergency custody issue involving threat of injury to her two children who resided in New Jersey with their father, Felipe Nieves. Because the children were in Connecticut for visitation, Connecticut had emergency jurisdiction pursuant to Connecticut General Statute Sec. 46b-115n.

    Because Attorney Daniels had a scheduling conflict, he asked that I prepare the case for court. I interviewed our client, spoke with her attorney in New Jersey, Veronica Davis, and prepared the necessary pleadings. Attorney Davis had informed me that she did not want to file a motion in New Jersey because there was a pending trial decision to be issued by Judge Peterson and she feared that this motion would anger the judge and affect his decision based on his rulings against our mutual client during the course of trial. She also stated that she did not think Connecticut had jurisdiction. I told her that I would proceed in Connecticut at our client’s request. She asked to be kept informed about the proceedings in Connecticut.

    I went to court with the client expecting to conduct the hearing myself. While seated at counsel’s table, Attorney Daniels appeared ready to proceed with the case. I remained seated at counsel’s table and said nothing further on the record except for my introduction at the beginning of the proceedings.

    Attorney Daniels proceeding with his argument to the court. Judge Alander was extremely reluctant to issues any custody orders. The Judge certainly believed that New Jersey was the appropriate forum. Our position was that the Court should order temporary custody to the mother until the New Jersey court could schedule a court hearing. The mother was required to bring the children back on Sunday. The problem was is was late on the Friday afternoon before Martin Luther King’s Birthday and courts in New Jersey would not be open until Tuesday. The mother would have placed herself in a potential contempt situation if she did not return the children back on Sunday.

    When Judge Alander asked why Ms. Montalvo would not bring this motion in New Jersey, Attorney Daniels made the stupid comment about “reasons that would not be flattering to the judiciary”. The last thing you want to do is criticize a judge to another judge. All Daniels was doing, however, was referring to the fact that Attorney Davis had stated that Judge Peterson may base his decision on the filing of this emergency motion.

    Attorney Daniels requested that Judge Alander consult with Judge Peterson which he did. After he returned from his conversation with Judge Peterson, Judge Alander granted temporary custody to Ms. Montalvo until a hearing was scheduled in NJ four days later. At no time did Attorney Daniels make a misleading statement to the court that should have been corrected by me.

    I called Attorney Davis who was surprised with the outcome. I told her I would obtain a copy of the transcript and mail it to her which I did. A week or so later, I received a letter from Judge Alander stating that Attorney Davis made a complaint as to her position regarding filing an emergency custody motion.

    The court decision outlines the legal issue involved. Of interest, Attorney Daniels was suspended from the practice of law for a number of grievances filed by clients complaining of various issues that pertained mostly to neglect of cases. The court appointed me as trustee of the Law Offices of Douglas Daniels. In my role as trustee, I had to protect the clients funds. Attorney Daniels refused to give me access to the clients funds. I obtained a court order granting me access to those bank records. I discovered that there was at least $300,000.00 in clients funds that were unaccounted for. I obtained a court orders freezing those bank accounts, barring Attorney Daniels from the office, and filed a motion for contempt against Attorney Daniels for unlawful practice of law while suspended. The Court has issued a capias (civil arrest warrant)with a $50,000 bond. The Court has also referred the case to the State’s Attorney’s office for criminal investigation. Does this look like an associate that would be afraid to correct his boss fore making misstatements in court?

    I also was able to obtain jurisdiction in the State of Connecticut on Ms. Montalvo’s custody case. She has obtained sole custody of the children. The father, Felipe Nieves was incarcerated for his involvement in a large drug dealing operation.

    I have tried to do everything with the utmost respect and integrity of the legal system. It just amazed me that I could be reprimanded (and exposed to even worse)for trying to represent a client with children that were at risk. Ultimately, Attorney Daniels got what he deserved, Ms. Montalvo got what she deserved, the children got what they deserved, and all I got was a blemish record as to my integrity.

    I am happy that this case has gotten some attention within the legal community. This decision puts all attorneys risk.

    Comment by Dennis W. Driscoll — September 14, 2004 @ 3:43 pm

  26. Being the associate who was the subject of the appeal, Daniels v. Alander, 75 Conn. App. 864, 818 A.2d 106 (2003), there are some pertinent and interesting facts that should be made known to the readers.

    I began working for Attorney Douglas Daniels in March of 2000. The week that I began, I ran into Judge Jon Alander while walking on the street. I had previously clerked for the Judge and had a friendly relationship. Judge Alander asked me what I was doing and I informed him of my association with Attorney Daniels. Judge Alander advised me that Attorney Daniels had a number of grievances pending against him and that I should be careful. I told the Judge that Attorney Daniels had asked me to join him as a partner but I declined because of my knowledge of these grievances. Attorney Daniels had the reputation of being a good trial attorney but being unorganized with his office management.

    In January of 2001, Ines Montalvo hired Douglas Daniels to represent her on an emergency custody issue involving threat of injury to her two children who resided in New Jersey with their father, Felipe Nieves. Because the children were in Connecticut for visitation, Connecticut had emergency jurisdiction pursuant to Connecticut General Statute Sec. 46b-115n.

    Because Attorney Daniels had a scheduling conflict, he asked that I prepare the case for court. I interviewed our client, spoke with her attorney in New Jersey, Veronica Davis, and prepared the necessary pleadings. Attorney Davis had informed me that she did not want to file a motion in New Jersey because there was a pending trial decision to be issued by Judge Peterson and she feared that this motion would anger the judge and affect his decision based on his rulings against our mutual client during the course of trial. She also stated that she did not think Connecticut had jurisdiction. I told her that I would proceed in Connecticut at our client’s request. She asked to be kept informed about the proceedings in Connecticut.

    I went to court with the client expecting to conduct the hearing myself. While seated at counsel’s table, Attorney Daniels appeared ready to proceed with the case. I remained seated at counsel’s table and said nothing further on the record except for my introduction at the beginning of the proceedings.

    Attorney Daniels proceeding with his argument to the court. Judge Alander was extremely reluctant to issues any custody orders. The Judge certainly believed that New Jersey was the appropriate forum. Our position was that the Court should order temporary custody to the mother until the New Jersey court could schedule a court hearing. The mother was required to bring the children back on Sunday. The problem was is was late on the Friday afternoon before Martin Luther King’s Birthday and courts in New Jersey would not be open until Tuesday. The mother would have placed herself in a potential contempt situation if she did not return the children back on Sunday.

    When Judge Alander asked why Ms. Montalvo would not bring this motion in New Jersey, Attorney Daniels made the stupid comment about “reasons that would not be flattering to the judiciary”. The last thing you want to do is criticize a judge to another judge. All Daniels was doing, however, was referring to the fact that Attorney Davis had stated that Judge Peterson may base his decision on the filing of this emergency motion.

    Attorney Daniels requested that Judge Alander consult with Judge Peterson which he did. After he returned from his conversation with Judge Peterson, Judge Alander granted temporary custody to Ms. Montalvo until a hearing was scheduled in NJ four days later. At no time did Attorney Daniels make a misleading statement to the court that should have been corrected by me.

    I called Attorney Davis who was surprised with the outcome. I told her I would obtain a copy of the transcript and mail it to her which I did. A week or so later, I received a letter from Judge Alander stating that Attorney Davis made a complaint as to her position regarding filing an emergency custody motion.

    The court decision outlines the legal issue involved. Of interest, Attorney Daniels was suspended from the practice of law for a number of grievances filed by clients complaining of various issues that pertained mostly to neglect of cases. The court appointed me as trustee of the Law Offices of Douglas Daniels. In my role as trustee, I had to protect the clients funds. Attorney Daniels refused to give me access to the clients funds. I obtained a court order granting me access to those bank records. I discovered that there was at least $300,000.00 in clients funds that were unaccounted for. I obtained a court orders freezing those bank accounts, barring Attorney Daniels from the office, and filed a motion for contempt against Attorney Daniels for unlawful practice of law while suspended. The Court has issued a capias (civil arrest warrant)with a $50,000 bond. The Court has also referred the case to the State’s Attorney’s office for criminal investigation. Does this look like an associate that would be afraid to correct his boss fore making misstatements in court?

    I also was able to obtain jurisdiction in the State of Connecticut on Ms. Montalvo’s custody case. She has obtained sole custody of the children. The father, Felipe Nieves was incarcerated for his involvement in a large drug dealing operation.

    I have tried to do everything with the utmost respect and integrity of the legal system. It just amazed me that I could be reprimanded (and exposed to even worse)for trying to represent a client with children that were at risk. Ultimately, Attorney Daniels got what he deserved, Ms. Montalvo got what she deserved, the children got what they deserved, and all I got was a blemish record as to my integrity.

    I am happy that this case has gotten some attention within the legal community. This decision puts all attorneys risk.

    Comment by Dennis W. Driscoll — September 14, 2004 @ 3:43 pm

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