Mediation Message No. 110



Both the Business and Professions Code and the Rules of Professional Conduct prohibit attorneys from making misrepresentations to a judicial officer. Business and Professions Code section 6068, subdivision (d), provides that attorneys shall never “seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Rule of Professional Conduct 5-200(B), which adds jurors to this prohibition, states that an attorney “Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.” These standards reflect the policy that “Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.” (DiSabatino v. State Bar (1980) 27 Cal.3d 159, 162-163, quoting Paine v. State Bar (1939) 14 Cal.2d 150, 154.)

Deceit may be committed by an outright affirmative falsehood or by concealment of a material fact. (Daily v. Superior Court (1935) 4 Cal.App.2d 127, 131; see also Franklin v. State Bar (1986) 41 Cal.3d 700, 709 [“…concealment of a material fact ‘misleads the judge as effectively as a false statement…’”].)

It is not necessary that the court be deceived by the misrepresentation (Davis v. State Bar (1983) 33 Cal.3d 231, 240) or that the misrepresentation did not cause harm (Scofield v. State Bar (1965) 62 Cal.2d 624. 628 [“The suppression of that which is true, by one having knowledge or belief of the fact, to deceive another, or to induce him to enter into a contract, constitutes actual fraud.”]) because “it is the endeavor to secure an advantage by means of falsity which is denounced.” (Pickering v. State Bar (1944) 24 Cal.2d 141, 145.) It is also not a defense that the attorney believed it was necessary to lie to protect his or her client. (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 193.)

The following are examples of misrepresentations to the court: Signing a declaration on behalf of a declarant. (Garlow v. State Bar (1982) 30 Cal.3d 912); making false statements in an effort to disqualify a judge. (Lebbos v. State Bar (1991) 53 Cal.3d 37); filing a false statement regarding a client’s financial condition. (Dixon v. State Bar (1982) 32 Cal.3d 728, 738-739); falsely representing unawareness of the date and time of a court proceeding of which the attorney had notice and an obligation to appear. (In re Aguilar (2004) 34 Cal.4th 386, 393-394); misrepresenting grounds for a continuance. (Vaughn v. Municipal Court (1967) 252 Cal.App.2d 348, 354); not advising the court where a client could be reached. (Davidson v. State Bar (1976) 17 Cal.3d 570, 574) and representing to a mandatory settlement judge that the client did not believe he was responsible for the accident and wanted the matter to be tried, when the attorney knew that the client was dead. (In the matter of Jeffers (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 211; note that mediation confidentiality does not apply to an MSC.)

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, May 2015

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