It is, of course, tempting to want to post about one of the largest law firms in the nation going full quisling and bending the knee in response to an unlawful Executive Order targeting it. Instead, I will point you to this very well written piece by a fellow ethics nerd based in Wisconsin: Lawyering in a Time of Lawlessness (And Also Probably Cholera) — ethicking.com
For my part, for now, I will stick with what I said on BlueSky, “When the time comes to fight fascism, be a Perkins Coie not a Paul Weiss.” (And new reports that show that the “agreement” Trump 2.0 announced wasn’t exactly the deal PW thought it struck don’t paint the firm in any better light. Negotiate with a felon with no principles, and you can’t be surprised how it turns out.)
Today, what I am going to write about is something that (in a normal world) would be among the worst things lawyers could do and also a variation of the kind of “trickery” that tv programs about lawyers sometimes make it appear that lawyers are allowed to do.
TV shows tend to portray things like a lawyer swapping a person out in the courtroom to sit next to them as their client, and then after someone testifying as a witness identifies their “client” as the perpetrator, reveal the trap they had set as an “aha” moment. Now, such an event can be made possible ethically, but only if the lawyer who wants to try this “ploy” fully discloses the plan to the judge and the opposing counsel before doing it, but that doesn’t really make for great tv.
The sanctions proposal from a Special Master in Texas that this post is about can be read in full here. The short version of the story is that an associate at Irell & Manella altered the dates on documents that had been produced in discovery and then asked a witness about those documents without revealing the alterations to the witness first.
The longer version is somehow worse for the lawyer involved and his firm. The associate in question asked internally at his firm about his plan before doing it, and no one apparently intervened to stop it. The associate also then subsequently did not tell the truth when asked about whether anyone else with his firm knew what he intended to do. And to provide a bit more flavor, what the associate did at the deposition in question is laid out by the court like this:
During the Saint-Pierre Deposition, Mr. Manzin-Monnin presented a schematic drawing to Mr. Saint-Pierre that, unbeknownst to the witness, contained an altered date. Mr. Manzin-Monnin, with assistance from Mr. Barr, had changed the date on the schematic from August 10, 2011, to August 22, 2012 (the “Altered Document”). Significantly, the August 22, 2012 date is after the March 2012 alleged conception in CogniPower’s operative infringement contentions and after the July 3, 2012 filing date of CogniPower’s initial provisional patent application. (See Dkt. No. 246 at 3). When Mr. Manzin-Monnin presented the Altered Document to the witness, he began by stating, “I’m going to show you another document and try to understand the date of it.” (Dkt. No. 246; Ex. E, 193:12-13). Thereafter, Mr. Manzin-Monnin asked Mr. Saint-Pierre the following questions related to the Altered Document:
“What is the date of this document?” (referring to the Altered Document)
“And can you verify that that is the correct date?” (referring to the altered date)
“And what is the date of that schematic?” (referring to the Altered Document)
“And can you confirm that that is the date of this schematic?” (referring to the altered date in the Altered Document)
For clarity, the Mr. Barr referred to above was another individual employed at the associate’s firm who helped alter the documents but also sent the associate an email stating: “Also, you should get clear directions from somebody more senior than I am that they’re comfortable with mocked up dates on evidence floating around.”
The associate did not reveal to the witness that he had been being asked about and answering questions about an altered document until after the fact. As to the additional asks of dishonesty, those came about in connection with proceedings before an appointed Special Master:
During the December Hearing, the Special Master asked Mr. Sheasby, “Were you or any member of your team aware that this, to use the terminology, the doctored document was going to be used?” (Dkt. No. 331 at 66:3-5). Mr. Sheasby responded, “No your Honor, we were not.” (Id. at 66:6). Similarly, Mr. Manzin-Monnin was asked, “Did anyone on your team know that you were going to do this?” (Id. at 73:21-22). He responded, in part, “No, your Honor. I made this decision on my own. And I did not ask anyone else and that was my first mistake….and I would clearly ask for guidance from a more senior attorney before I did anything close…” (Id. at 73:23-74:6). As a result of the deposition of Mr. Manzin-Monnin, the Special Master learned that, in fact, Mr. Manzin Monnin had asked for guidance from Mr. Sheasby about this matter prior to the Saint-Pierre Deposition. Neither Mr. Sheasby nor Mr. Manzin-Monnin made the Special Master aware of this communication during the December Hearing. Mr. Sheasby and Mr. Manzin-Monnin’s failure to be forthright with the Special Master is both disturbing and it also constitutes a violation of their duty under the Texas Rules of Professional Conduct.
To address all of this, the Special Master has recommended the following as sanctions: (1) the associate and one of his superior lawyers must take 30 hours of legal ethics credits within 120 days; (2) their firm must pay all the fees incurred by the Special Master and the firm representing him; (3) the firm must reimburse the opposing party for a significant amount of their attorney fees incurred as a result of the conduct; and (4) [something I admittedly haven’t seen in a while] their client is deducted an hour from their time at trial (10 minutes from opening argument, 10 minutes from closing argument, and 40 minutes of their ability to present evidence).
Finally, although the sanctions proposal identifies a handful of ethics rules violated by the lawyers in question. It does not include any recommendation of any disciplinary referral.