I have recently had a case where the other attorney would tell us one thing on the phone and another to the Court or in Court papers. When called on this about face in court, the attorney made a weak denial before saying that it does not matter what he said and that it only matters what his client believes. In this situation, the assertion was curious, if not comical, because at issue was the interpretation of a court order.
That said, was opposing counsel right? I think that, in most cases, the answer is no. More importantly, there is a sufficient body of law that what a lawyer says could possibly bind a client. Of equal significance, if counsel relies on the representation of opposing counsel, only for opposing counsel to backtrack or lie about making the representation, the case will no doubt get more contentious, if not more expensive. In addition, thereafter, perhaps all communications will have to be in writing so that there can be no backtracking, etc. Moreover, this type of conduct raises ethical concerns regarding duties of candor to the court and duties of fairness to the opposing party, to name a few.
Some situations where an attorney can bind a client are as follows. If an attorney has authority to settle and makes a proposal or accepts an offer on behalf of a client, it may be possible to enforce that agreement. If an attorney takes a position in court, the client may very well be stuck with that position.
I have had situations where attorneys have made factual misrepresentations to a judge on the record at a motion or conference with the client sitting right next to them. In these situations, I have ordered the transcript for use at trial. During cross examination, I have asked the other party, if they were present, if they heard what was said, and if they concede it was incorrect. I then ask them to confirm that they were sitting there yet they never corrected the misrepresentation that they knew was wrong. In several trials, I have seen judges cite this to justify the finding that the party lacked credibility.
Family law cases are hard enough and emotionally charged enough that what we don’t need is sharp and dishonest practices by the lawyers. While bad for the system in general, this conduct also risks hurting their client’s case.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or firstname.lastname@example.org.