Posted on July 19, 2011 by Neil Garfield
Lawyers obligated to disclose faulty foreclosure paperwork
By Gary Blankenship
Lawyers representing banks and other mortgage service companies must tell the courts if they know of paperwork problems in their clients’ foreclosure cases, according to the Bar’s Professional Ethics Committee.
The committee, at its June 24 meeting during the Bar’s Annual Convention, voted 20-6 to uphold a Bar staff opinion which advised a lawyer representing a bank in thousands of foreclosure cases.
According to the attorney, the bank used two employees to prepare and review necessary affidavits needed for the foreclosures. One employee always verified the figures in the necessary affidavits and signed the necessary paperwork in the presence of a notary. The second signer relied on a conscientious assistant to verify the figures before signing that he had personally reviewed the figures. Also, those signatures were sometimes notarized when the signer was not present, as required by law. The second signer’s practices extended back for 20 years.
The lawyer wanted to know if the court had to be informed of those irregularities, since it was unlikely to change the outcome of any pending case. He also inquired whether it made any difference if the case was pending or closed, the stage of pending cases, or that the second signer had reverified information in the improperly notarized forms.
A Bar staff opinion held it makes no difference whether the case was open or closed or what stage an open case is at in terms of the lawyer’s duty. The opinion said that under Rule 4-3.3 (Candor Toward the Tribunal), the improperly prepared affidavits constitute false evidence, and the lawyer has a duty to disclose that to the courts.
Other rules must also be considered, the opinion said, including Rule 4-1.2(d) which prohibits assisting a client in criminal or fraudulent conduct, Rule 4-3.4(b) which prohibits a lawyer from fabricating evidence or assisting a witness who offers false testimony, Rule 4-8.4(a) which prohibits violating the Rules of Professional Conduct or assisting another to do so, Rule 4-8.4(c) which bars an attorney from conduct that constitutes dishonesty, fraud, deceit, or misrepresentation, and Rule 4-8.4(d) which prohibits a lawyer from conduct that is prejudicial to the administration of justice.
The staff opinion concluded that, “the inquiring attorney first should attempt to have the client correct the improperly verified and notarized affidavits. The inquiring attorney should advise the client that if the client fails to correct the affidavits, then the inquiring attorney will have to withdraw and will have to reveal the truth to the court. If the client refuses to take the required corrective action, the inquiring attorney will have to reveal the fact that there has been an improperly verified and notarized affidavit filed in each of these cases, whether they are pending or already closed. The inquiring attorney also will have to move to withdraw from further representation of the client in pending cases, where the client refuses to correct the affidavits, while making as minimal a disclosure as necessary when doing so.”
The committee discussed changing the staff opinion to say the lawyer would have a duty to disclose only if it would make a material difference in the case, but in the end left it unchanged.
“I strongly urge against watering down this opinion,” said committee member Ana Maria Martinez. “I understand the practical problem, but we can’t approve lying for 20 years.”
Added committee member Deborah A’Hearn: “Anything other than affirming the opinion, as is, is the functional equivalent of suborning perjury. We shouldn’t make allowances regardless of the practical problems. It is never OK to lie.”
Committee member Tim Chinaris voted to affirm the staff opinion, but said it’s questionable whether it affects foreclosures done years ago.
“Our rule refers to the requirement that when there’s been false evidence submitted to the court and you know about it, you have a duty to take reasonable remedial measures,” he said after the meeting.
“What do you do with an 18-year-old case when no one is around, the judge is gone, the parties are gone? Is there any remedial measure at that point? Is there any way to reopen the case?” he added. “According to the people who do that work, unless a very narrow standard is met, it’s a final judgment. If you have to take a reasonable remedial measure, but there’s nothing that can be done, there is no remedial measure.”
At the same time, it’s clear that lawyers have a duty under Bar rules to act, or they could be subject to disciplinary action, Chinaris said, noting that Bar rules in this area are stricter than the ABA model rules. ABA rules specify that the duty to disclose ends when the proceeding ends, while the Bar extends it past the end of the proceeding and leaves it open-ended.
“I thought the [staff] opinion assumed a little too much and went a little too far,” said committee member D. Culver “Skip” Smith, who voted against the final motion.
He noted the committee didn’t have any of the affidavits in question, and it was unclear whether anything was wrong with them other than the affidavit that the signer had personal knowledge of the information in the affidavit.
“It seems to me the opinion quickly assumed this qualified as ‘false evidence,’” Smith said. “The rule talks about a lawyer making a false statement of law or fact. This is not what this is. The staff opinion just assumed it should be false evidence, even if the only thing untrue in it was a notarization statement.”
He also questioned what he said was the assumption in the staff opinion that such a problem would be “material,” adding, “I think the lawyer should make that decision rather than us.”
The question could be appealed to the Bar Board of Governors but has not been as this News went to press.
The issue of foreclosure paperwork and shortcuts taken in preparing it is a sensitive one in Florida, where hundreds of thousands of foreclosure cases are pending in court.
The Legislature granted extra funding last year and the courts worked to create programs to handle the extra work, but the effort was hindered when faulty paperwork came to light. That included the use of “robosigners” who signed off on, in some cases, thousands of affidavits without personally verifying the information and improper notarizations, as well as errors in paperwork.
Revelations of those problems caused banks and mortgage companies to drop many cases they had filed and slowed down the filing of new cases. At the same time, it led to more challenges to foreclosures in courts, which lengthened the time it takes for the courts to process those cases.