Can You Sue a Lawyer for Violating Rule 3.3?

Roger Parloff at Fortune reports that Facebook is contemplating a lawsuit against the lawyers who for a time represented Paul Ceglia, the man who claimed to own half of Facebook and who has now been charged with criminal conduct.

The claim seems to rely at least in part on an alleged violation of Rule 3.3. DLA Piper was one of Ceglia's firms before it withdrew. Facebook claims Ceglia's "contract" with Zuckerberg was fraudulent.

I suppose the legal basis for any suit will be malicious prosecution or abuse of process or equivalent tort and allege that the firms knew (or should have known?) that the suit was a fraud. The alleged rule violation (which requires knowledge) would then  be evidence in support of the legal claim. The Fortune story is here:

http://tech.fortune.cnn.com/2012/11/16/facebooks-revenge-in-court/

 

Comments

[John Steele]

Steve,

Does NY have an anti-SLAPP statute? In California, you need to be careful about suing the opposing lawyers (except for abuse of process and malicious prosecution).

[Nicole]

Is there a potential clam under NY Jud Law 487(1) here?

"An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or
collusion, with intent to deceive the court or any party; or,
2. Wilfully delays his client's suit with a view to his own gain; or,
wilfully receives any money or allowance for or on account of any money
which he has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment
prescribed therefor by the penal law, he forfeits to the party injured
treble damages, to be recovered in a civil action."

I think most case law requires more than one incident of deception, but you may have that here.

NY does have an anti-SLAPP statue but it is very limited - not as broad as California's. It only protects speech in connection with granting or denial of a public permit or application.

[Nicole]

And thanks for posting this - really interesting. I note that the article cites you (Mr. Gillers) as saying that Kasowitz did not have a duty to report under 3.3. Perhaps they were concerned that 8.3 might be implicated, which is why they say they will reassess their obligations after Vacco reports on the results of his investigation and what steps his firm will take.

[John Steele]

Nicole,

I can't quite place my finger on it, but some professor wrote an article about the possible uses of that kind of statute in the last several years.

I also want to stress that I have not drawn any conclusions about the various lawyers -- except that Kasowitz seems to doing the right (and difficult) thing.

[Nicole]

Not sure if this is the article you're referring to, but it came up in my research on the statute:

http://lawreview.law.ucdavis.edu/issues/44/2/articles/44-2_Long.pdf

I agree it is too soon to draw any conclusions here. But in my practice, I am seeing lawyers facing these dilemmas more frequently. I expect you are seeing a similar trend. This truly can be a "damned if you do, damned if you don't situation." If the lawyer makes the wrong call on whether to report the (perceived or real) fraud, he could be subject discipline either way.

[John Steele]

Nicole, thanks. That is indeed the article and I should have remembered that Alex Long wrote it. I agree with your analysis of the dangers.