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Lawyer’s Failure to Correct Client’s False Statement In Probate Matter Merits Discipline

Filed March 6.

This is an unusual proceeding. A lawyer, John Argoudelis, was retained to represent a client. The client, Paul Volgar, informed him that he was the sole heir of James Volgar. Later, the lawyer filed an Affidavit of Heirship which listed one heir. The attorney was disciplined because, soon after filing the affidavit, he became aware that James Volgar had several other heirs, but he failed to correct the affidavit.

The opinion explains:

“Rule 1.2(g) states:

a lawyer who knows a client has perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal.

We find that Respondent violated the foregoing rule. Having discovered that his client lied to him and knowing that false information had been provided to the Court, Respondent had an affirmative duty to ensure that the information was corrected. Although Respondent testified he advised Paul that the affidavit of heirship would have to be amended, his February 10, 2009 letter contained nothing more than a lukewarm suggestion of action and, rather than providing specific direction as to how to proceed, he requested instructions from his client. That suggestion did not satisfy the requirement to “call upon the client” to correct a fraud.

After the February letter, Respondent did not pursue the issue with Paul, nor did he take any action himself to reveal the falsity. Instead, he used the letters of administration, which had been issued based upon false information, to request James’ medical and financial information and to sell James’ house. We do not accept Respondent’s assumption that the letters of office were valid because Paul had statutory preference to serve as administrator of the estate, since it is possible that the other heirs may have had valid objections to Paul serving as administrator.”

The Panel also found that the attorney failed to correct a false statement to a Tribunal. The explanation is as follows: “We do, however, find that the second sentence of the rule was violated because Respondent failed to take remedial measures to correct the false statement made in the affidavit of heirship and the false statements that followed. The Court was not apprised of the true heirship until May 2010 when Margaret Madonis’ counsel filed a motion to remove Paul as administrator.

Rule 3.3(a)(1) states, in part, that a lawyer shall not fail to correct a false statement of material fact previously made to the tribunal by the lawyer. As previously stated, Respondent failed to take any corrective action in 2010 regarding the false statements in his written submissions or the false statements he made in open court. Therefore we find that he violated Rule 3.3(a)(1).”

The Hearing Panel recommended a 90-day suspension.

This unfortunate situation resulted, in my opinion, because of the lawyer’s failure to stand up to his client. This is often the hardest part of the attorney-client relationship – sometimes you must tell the client that he is incorrect and that a different approach is indicated. It often means that you lose the client and lose the fees that the client would have paid you. Lawyers are held to a higher standard than other professionals and must often confront the client who lies or who has unrealistic expectations.

Update the Review Board affirmed the factual findings and recommended a five month suspension.  www.iardc.org

Edward X. Clinton, Jr.

www.clintonlaw.net