Here’s a free risk management tip: don’t use ellipses in briefs and pleadings to hide information you don’t want the court to see.
It will irritate the judge and could be an ethics violation.
Consider this case in California, where the Consumer Financial Protection Bureau brought an action against an Orange County law firm believed to be engaged in impermissible debt-relief activities. A Civil Investigative Demand sought debt-relief records from the firm.
The firm called the CID a fishing expedition and petitioned to have it set aside. The presiding U.S. District Judge said the firm’s petition “cleverly uses ellipses” in challenging the CID, but the information omitted by the ellipses disproved the very point the firm was trying to make.
The judge compelled the firm to comply with the CID. Read the order here.
Reading Between The Dots
This is from the ABA Journal:
“According to the brief, the CID notice of purpose said the investigation was ‘to determine whether … unnamed persons are engaging in unlawful acts or practices in the advertising, marketing or sale of debt relief services or products … in violation of … any other federal consumer financial law.’ That description:
• Omitted that the types of persons being investigated included debt relief providers and lead generators.
• Omitted that the type of debt relief services being investigated included debt negotiation, debt elimination, debt settlement, and credit counseling.
• Omitted a recitation of the specific laws possibly being violated.”
In short, the firm’s attempt … to deny and defend … by concealing relevant facts inside … three little dots … was unsuccessful … but … offers a valuable … cautionary lesson.
RPC 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer 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. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
- ABA Journal http://www.abajournal.com/news/article/federal_judge_calls_out_law_firm_for_cleverly_using_ellipses/?utm_source=internal&utm_medium=navigation&utm_campaign=most_read
- Consumer Financial Protection Bureau v. Seila Law LLC https://assets.documentcloud.org/documents/3982270/CFPB-Seila-CID-Granted.pdf
- NC State Bar RPC 3.3 https://www.ncbar.gov/for-lawyers/ethics/rules-of-professional-conduct/rule-33-candor-toward-the-tribunal/?ruleSearchTerm=disclose%20adverse%20law