In our last column, we visited the plight of a lawyer who caught the wrath of a trial judge for reporting to the government the existence of tax lien (only to escape liability because no damages were proven). In this column, we visit the potential liability of a lawyer for reporting to the DA the whereabouts of a person apparently wanted on a bench warrant for welfare fraud.
Lawyers often contact nonparties who have become swept up into the maelstrom. Sometimes those involved are potential witnesses. As the U.S. Supreme Court recently held in a case affecting the criminal defense bar, a client has every right to have all potential defense witnesses interviewed and all possible defense theories checked out. Rompilla v.Beard, No. 04-5462 (U.S., June 20, 2005) (death sentence reversed due to counsel’s alleged failure to review file containing documentation on potentially mitigating circumstances). In the civil realm, the range of that requirement is less clear, but a lawyer’s judgment that a contact will be useless or counterproductive may not satisfy a client afflicted by a unwelcome result.
The need to contact third parties may not be limited to litigation. Whenever a lawyer has some independent duty to ascertain the factual basis for an assertion to be made or a filing, a lawyer may have a responsibility to confirm assertions with nonparties. Also, a lawyer may have occasion to give a client advice as to what actions may be taken against a person who is a party or a witness.
However, as the opinion by Magistrate Judge Thomas Rueter in Singer v. Guckenheimer Enters., 2004 U.S. Dist. LEXIS 13258 (E.D. Pa., July 13, 2004), made clear, contact with nonclients may itself create a cause of action against that lawyer. In that case, plaintiffs claimed that “defendant [counsel] conspired with a representative from the Philadelphia District Attorney’s Office in an effort to intimidate and/or harass” a witness, by threatening that, if she testified, she would be “locked up” and “prosecuted for welfare fraud.” The witness had an outstanding bench warrant for welfare fraud and it was alleged she was threatened with arrest if she attended a deposition scheduled by the other side.
Judge Rueter stated that “[t]his statement, if made at the behest of defendant and/or defense counsel, would establish plaintiffs’ claim under [42 U.S.C.] Section 1985(2). See Heffernan v. Hunter, 189 F.3d 405, 409-11 (3d Cir. 1999) (holding that a frivolous lawsuit to intimidate and affect an individual’s attendance and testimony as a witness was enough to state a 1985(2) claim); Chahal v. Paine Webber, 725 F.2d 20, 25 (2nd Cir. 1984) (statements made to a potential witness in a lawsuit to dissuade him from testifying sufficient to withstand motion for summary judgment) [aff’d, 483 U.S. 143 (1987)].” See also Depace v. Jefferson Health System, Inc., 2004 U.S. Dist. LEXIS (E.D. Pa., Dec. 7, 2004) (limitation of medical privileges by a hospital could constitute violation of section 1985(2)).
Therefore, a lawyer’s considerable power of dissuasion (even if undertaken with aplomb and indirectly) of a witness’s (or a potential whistleblower’s) willingness to perpetuate an untruth must either be limited to deposition and trial settings or be undertaken very cautiously, if at all, to avoid liability for conspiracy under applicable federal or state law. Ironically, the impact of Rompilla may be give rise to such a claim by the government against criminal defense counsel who are now compelled to wonder further into the maelstrom than ever before.
Jeffrey B. Albert is a shareholder of the Philadelphia-based law firm of McKissock & Hoffman P.C., with offices also in Harrisburg, Doylestown, West Chester and Westmont, N.J. He serves as co-chair of the PBA Task Force on Law Practice Management and Legal Technology and as chair of a PBA Professional Liability Committee subcommittee.