Tonight's post about the intersection of ethics of family law and discovery was written by Jennifer Thuy-Tien McCall who heads up our newest office in Gainesville.
People often imagine shocking moments unfolding in court: a surprise witness, a video that proves everything, a lost weapon found, a spontaneous confession. Our clients are often surprised long before we go to court by an odd process called "discovery." It's pretty straightforward though. In court cases, and especially in family law cases, parties can formally request documents from the other party: bank records, cell phone records, emails, etc., and seek sworn answers to questions.
It seems strange to reveal so much information to the other party early in the case; however, facts shared in discovery help the parties gain a clearer understanding of their case. Discovery encourages parties to settle some issues, maybe all issues, without requiring a lengthy and expensive trial.
However, this process only works when clients are honest. Those who are dishonest face serious consequences. You may find yourself at a hearing where you are ordered to hand over that information anyway and are also ordered to pay the other party's attorney fees. You may even be barred from presenting your evidence at trial.
Discovery can certainly be a daunting process and it is helpful to have attorneys help you sift through your evidence to make sure you comply with what is required. There are tight deadlines and clients often underestimate the time it takes to complete discovery responses. Some requests are objectionable. Some evidence can be withheld because of attorney-client privilege or because it's irrelevant and not likely to lead to the discovery of admissible evidence. Your attorney will figure out what requests you may object to and which you must respond to.
When you provide your responses and responsive documents, you also swear under oath that the responses are true and complete
I once had a client tell me that there was no way she was turning over all of her bank accounts because she had a hidden account. I told her that there was no way I could assist her in lying, that she would be committing perjury and, as the Bar Rules state, I could not and would not suborn perjury.
She responded by emailing my boss to complain about his "ethical" attorney. My boss explained that the Rules are the Rules and any attorney worth their salt would tell her the same thing. I was new to the firm and I was glad to know that my firm backed me, that we would remain true to our ethical obligations and that we would not be the bad guys.
Not only is it unethical to withhold documents and lie in your responses, it is also impractical. What you hide, you highlight. What you bury will soar. It will become the issue. You hand the other side a valuable gift in making the case about your honesty. You also cost yourself far, far more in the long run.
Even if you happen to get away with something and feel you have won, you lose elsewhere. It will come back on you. You still have to live with yourself. The damage is still done, even if you do not get caught, this time. Considering the heavy sanctions, and the inevitable repercussions, it is just not worth the risk.
To summarize, it is a stupid play. Don't do it. Be honest. Be ethical. Be smart.
Jennifer Thuy-Tien McCall