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When Lawyers’ Statements Hurt their Clients

Significant fallout ensued when former New York City mayor and Trump attorney Rudy Giuliani made statements last week which contradicted previous statements of his client and his client’s lawyer, Michael Cohen. But while political commentators on both sides frame the situation in partisan terms, there’s a much broader lesson to be learned here for lawyers and their clients.  Giuliani’s statements offer a cautionary tale on the importance of thoroughly investigating the facts of a case before speaking to the press, as in this case, or more commonly to a prosecutor or judge.

As attorneys, we stand in the shoes of our clients for all matters within the scope of representation. Link v. Wabash R.R. Co., 370 U.S. 626, 634 (1962). Additionally, the statements that attorneys make can be held against a client. In Wabash, the Supreme Court held, “[The client] voluntarily chose [his] attorney … and cannot now avoid the consequences of the acts or admissions of this freely selected agent…. [E]ach party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts … which can be charged upon the attorney.”

For example, in U.S. v. Harmon, No. CR 08-00938 JW (N.D. Cal. 2010), the defendant was indicted for prosecutorial misconduct. The government sought to introduce a letter from the defendant’s attorney in connection with prior State Bar proceedings on the theory that the since the attorney was acting as defendant’s agent, those statements contained within the letter are admissible as adoptive party admissions. Pursuant to Federal Rules of Evidence 801(d)(2)(D), a statement is not hearsay if the statement is offered against a party and is a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship. The court in Harmon admitted the letter as an adoptive admission of the defendant, as there was no dispute the defendant’s attorney authored the letter and wrote it within the scope of their representation.

Similarly, in DiCamillo v. City of New York, 245 A.D.2d 332 (1997), the Second Department ordered a new trial after the trial court refused to admit evidence of a letter written by the plaintiff’s attorney that was inconsistent with the injured plaintiff’s trial testimony, as that letter was an adoptive admission that put into question the location of a slip and fall accident.

So, the situation has much broader implications for the day-to-day legal practice outside of high profile matters. Failing to thoroughly investigate the facts of the case or getting an incomplete or false account from the client can result in a disaster when incomplete, incorrect, or outright false statements are made, even upon information and belief, from the lawyer.  For example, a lawyer who tells the prosecutor during plea negotiations that his client only conducted three illegal transactions will lose credibility and bargaining authority when the prosecutor exposes evidence of 50 such transactions. It can be even worse if incorrect statements are made to a judge—either the judge sees the attorney as untruthful, incompetent or sloppy, or she sees a client who is lying to his own lawyer.  Either way, the client gets no benefit.

Lawyers must work hard to avoid this situation by spending a good deal of time going through every detail of a case with the client and examining all evidence possible. The notes the attorney makes are attorney work-product and not discoverable by the other side, so there should be no fear in writing down all the salient details which a busy lawyer might forget as a case moves forward for weeks, months or even years. The more complicated or detailed a case is (such as white collar fraud cases or those involving voluminous financial transaction records), the more time is likely to be required. Serious federal fraud or drug cases can require many, many hours of investigation before a lawyer should even think about talking to a prosecutor or judge with anything other than the most generic statements. The best lawyers will expend significant time looking over the facts of a case before making the decision of what to say to a prosecutor or judge, and certainly before making any decisions about whether to do a client proffer or advise a guilty plea.

It is also critical that lawyers press their clients on the importance of honesty in the lawyer-client relationship. It may be natural for clients to want to minimize culpability and criminal conduct even to, and perhaps especially to, a lawyer they trust or admire.  But clients who don’t tell the whole story ultimately sabotage their own interests.

A lazy lawyer might take shortcuts, and in doing so may charge a more modest fee to handle an investigation or criminal case. Clients who hire such lawyers are penny wise but pound foolish and can find themselves in a serious predicament.  If even an experienced former federal prosecutor like Rudy Giuliani can create a bit of chaos for a client, you can only imagine what an inexperienced, lazy or sloppy lawyer can do.  Lawyers and clients alike need to recognize the importance of “getting the facts straight” before talking about a case outside that relationship.

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