What Happens When an Attorney Knows Their Client is Lying?
Hertzberg Salant Attorneys
Full Service Law Firm supported by Financial Specialists
By Garry hertzberg and Natasha Sonblo of www.hersalaw.co.za
As attorneys, we’ve lost count of how many times we’ve been asked, “How can you defend a client when you know they’re guilty?” It’s a fair question, but the truth is, we usually don’t know. We suspect, we wonder, we raise an eyebrow, but solid proof is another matter.
However, sometimes the truth isn’t just a gut feeling—it’s undeniable. That’s exactly what happened in a recent Pretoria High Court case, where an attorney filed an affidavit for a client knowing it contained false statements. The proof? A trail of correspondence with the opposing party that the attorney knew about, showing his client had committed fraud before launching the application to court.
The Consequences of an Attorney Misleading the Court
The Court examined whether the attorney should bear responsibility for knowingly presenting false evidence. The attorney argued that he was just following instructions, but the Court disagreed. Attorneys are officers of the court first and must refuse instructions that mislead it.
In this case, both attorney and client were held equally accountable. The client was ordered to pay 50% of the costs on an attorney/client scale, while the attorney was personally liable for the other 50%, de bonis propriis—out of his own pocket.
Your take on this?
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3 周Nice post. I think the answer lies in the phrase "Officer of the Court". Regrettably, today with so much fraud, theft and corruption, the moral goalposts have shifted. The concept prevalent in many parts of the second and third world countries that, "it's only a crime if you get caught" is stretched even further in lawless South Africa. Court dockets can get "lost" for a R1000 bribe. The police and justice system, especially at lower levels, are so porous. Apparently, only 1% of those caught of a crime get jail time. The odds are stacked against the moral and justice system of law and order. If this trend continues it may be difficult for lawyers to say no to known law breakers, otherwise some less scrupulous lawyer will take the case. Authenticity becomes a moral and spiritual choice. Historically, lawyers are ranked with second hand car dealers in surveys of trust conducted by reputable Pollsters. That's globally and in South Africa it may be worse. If you knew Who was watching you, while you create the causal/ karma of your words and actions every person will think twice about their lack of morality and authenticity. I have known Garry Hertzberg for forty years and praise him for his morality and authenticity as a great lawyer.