Ethics

Lawyers should not take the client's verification if they can avoid it

, The Legal Intelligencer

   | 2 Comments

I am an attorney who does a fair amount of personal injury litigation. I noticed the plaintiff's attorney took the verification on answers to new matter and also the verification on the complaint. Is that ethical?

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What's being said

  • Mike

    It would be helpful to know of case law supporting Mr. Stretton's position that the attorney client privilege could be waived by the attorney signing a verification for a client or that the lawyer could be subject to disqualification. Pa R.C.P. 2023.1 deals with an attorney's duty to enquiry into the basis, including evidentiary, for statements made in any document filed with the court. The commentary suggests that the attorney have an active role in developing fact/evidence grounds for averments. Mr. Stretton's answer to the question appears to this reader as overbroad and does not allow for exceptions except time constraints. A lawyer's investigation into factual and evidentiary basis for a pleading could yield discovery of material facts which are unknown to the client or for which the client does not have an independent knowledge. Perhaps I am missing a premise on which the answer is based.

  • Harry Bryans

    Sam's piece above on the duty of supervisory lawyers is an excellent reminder to all of us. I would, however, take issue with one word that he uses: "vicariously." Disciplinary liability under Rule 5.1(c) is not vicarious liability, That is, it is not strict liability based on the supervisory lawyer's mere status as a supervisor of the subordinate lawyer. As Sam makes clear, Rule 5.1(c) requires that the supervisory lawyer either [A] be "aware of and ..order or ratifiy" the subordinate lawyer's misconduct, or [B] learn "of the misconduct, ... when it can be remedied [or mitigated], but takes no remedial action." These are independent violations by the supervisory lawyer. Rule 5.1(c) does not establish strict liability by reason of status and it is not, therefore, vicarious liability.



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