ISSUE: An attorney licensed in the State of New York is getting a divorce and during that divorce proceeding, he does not disclose some of his assets to his wife. Although this may cause the final judgment of divorce to be reopened, is the attorney's failure to disclose his assets a violation of his ethical duties as an attorney in the State of New York? In other words, can he be sanctioned as an attorney?
I.
The Rules of Professional Conduct
apply to attorneys who self-represent.
Disciplinary rules
that prohibit lawyers from engaging in certain conduct in the representation of
a client also applies to pro se attorneys, whose clients are themselves.
In re Chiofalo 909 N.Y.S.2d 36 (1 App Div. 2010); see also,
West’s 45 Key Note 32(5).
An attorney in a
matrimonial proceeding remains subject to the Rules of Professional Conduct
during the proceeding, even if he is an unrepresented party.
II. The
Rules of Professional Conduct prohibit dishonesty and, in some circumstances,
failure to disclose.
Rule 8.4 of the New York Rules of
Professional Conduct broadly states that:
“A lawyer or law firm shall not...
(c) engage in conduct
involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the
administration of justice....”
Focusing on a lawyer’s conduct before a
tribunal, Rule 3.3(a)(1) states
that,
“[a] lawyer
shall not knowingly,
(1)
make a false statement of
fact or law to a tribunal...
(3) offer or use evidence that the lawyer
knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer has offered material evidence
and the lawyer comes to know of its falsity, the lawyer shall take reasonable
remedial measures, including, if necessary, disclosure to the tribunal.”
“Lawyers have a special obligation as officers
of the court to protect a tribunal against criminal or fraudulent conduct that
undermines the integrity of the adjudicative process.” Comments Section 12 of
Rule 3.3. A lawyer shall take remedial
measures when they know that the client has engaged in illegal or fraudulent
conduct, such as, “failing to disclose information to the tribunal when
required by law to do so.” Comments Section 12 of Rule 3.3. Although the duty of truthfulness does not
require the disclosure of all information directly contrary to the client’s
position, Comments Section 3 of Rule 3.3 elaborates that “[t]here are
circumstances where failure to make a disclosure is the equivalent of an
affirmative misrepresentation.” Comments Section 3 of Rule 3.3 (emphasis
added); see, New York Practice Series 34:18.
Considering
that a party is required by law to disclose their finances in a matrimonial
proceeding, the failure to disclose those finances is likely to be an
affirmative representation.
Conclusion
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