Legal ethics

Let’s talk about the 3.3 of 303 Creative

So, for folks of my political persuasion, the last week of the Supreme Court term was a real gut punch. Today’s post is not about arguing with anyone over whether the outcome of the 303 Creative decision was or was not correct and is not even about whether the Plaintiff in 303 Creative should have been viewed as having standing or bringing a live case or controversy.

If you want to delve into all of those issues, you can go read something like this well-constructed post by David Post at Volokh Conspiracy (and I truly think the author there is onto something about the horse trading that may have occurred to have two 6-3 decisions with differing six packs on cases of questionable justiciability) or something like this one by Chris Geidner at Law Dork.

For what it is worth, I think the answer to all of those issues was doomed by the decision of the lawyers for the State of Colorado to agree to the stipulated facts that are detailed in the Supreme Court majority opinion.

What I am very curious about though is what role, if any, fabricated evidence played in convincing those Colorado lawyers to stipulate to certain facts. And that curiosity also provides a decent opportunity to ask the question, in context, of whether or not anyone should draw the conclusion that the lawyers who represented the Plaintiff in 303 Creative violated RPC 3.3.

By way of quick refresher, in any jurisdiction that tracks the language of the ABA Model Rules, RPC 3.3(b) provides that “[a] lawyer shall not offer evidence the lawyer knows to be false.” Concurrently, RPC 3.3(g) provides that “[a] lawyer who, prior to the conclusion of the proceeding, comes to know that the lawyer has offered false tangible or documentary evidence shall withdraw or disaffirm such evidence without further disclosure of information protected by RPC 1.6.” RPC 3.3(c) also prohibits a lawyer from “affirm[ing] the validity of, or otherwise us[ing] any evidence the lawyer knows to be false.”

In the days surrounding the issuance of the opinion in 303 Creative, there were a number of stories in the media revealing that evidence that was put into the record at the district court level was entirely false. Specifically, after the Plaintiff had filed her complaint, she put into the court record that she had received a request by email from a homosexual couple expressing interest in having the Plaintiff make a website to celebrate their upcoming wedding. This evidence was proffered by way of an affidavit signed by the Plaintiff. The affidavit was included in the joint appendix submitted to the United States Supreme Court. The day before the opinion came down, however, a reporter broke the news that when she called the person who purportedly made the request to the Plaintiff back in 2016, he denied doing so, denied being gay, and was in fact already married.

Now, if you read the majority opinion and the dissent, this fake request is simply never mentioned. The Plaintiff’s lawyers did, however, include a sentence in their briefing to the U.S. Supreme Court referencing that such a request was received. Thus, it seems inescapable to conclude that, even if the lawyers can be said to have attempted to affirm the validity of the false evidence, it was in no way material to the outcome of the Supreme Court decision. But RPC 3.3 does not require that false evidence be material to be a problem for a lawyer. Furthermore, and circling back to what piqued my curiosity in the first place, if the false affidavit played any role in convincing opposing counsel to go ahead and stipulate to facts that they would not otherwise have stipulated to, then the false affidavit obviously actually was material.

Other than media reports, in order to get more insight into the nature of the false evidence, you have to go all the way back to the opinion of the district court, where the district court raised some question about it but did not question that the actual request had been fabricated:

 “Assuming that it indicates a market for Plaintiffs’ services, it is not clear that Stewart and Mike are a same-sex couple (as such names can be used by members of both sexes) and it does not explicitly request website services, without which there can be no refusal by Plaintiffs.”

As things stand, everything has to turn on what Plaintiff’s lawyers knew, if anything, about the fabricated evidence and when. Because while RPC 3.3 does not require false evidence to be material to be a problem for lawyers, RPC 3.3(g) does require a lawyer to come to know that they were involved in submitting the false evidence before the proceeding comes to a conclusion.

So, if the lawyers only learned about the false request through the media like the rest of us, then they might not be found to have had the requisite knowledge before the Court issued its opinion and ended the case.

In jurisdictions tracking the language of the Model Rules, however, “knows” is actually a defined phrase and while it means “actual knowledge,” the rules also make clear that “knowledge may be inferred from circumstances.” RPC 1.0(f).

Thus, for purposes of at least figuring out the RPC 3.3 issues, the facts about Plaintiff’s counsel’s knowledge are less than clear.

But any analysis of potential wrongdoing by the Plaintiff’s lawyers does not end there, because the story of the litigation does make clear that after Plaintiff lost at the district court level, they went out into the public media on a number of occasions clearly presenting the inquiry Plaintiff claimed to have received as a real one. That could be a problem under RPC 4.1 because lawyers also cannot, while representing a client, make false statements of fact or law to third persons, but, unlike RPC 3.3, RPC 4.1 clearly indicates that the facts or law have to be material. And, given that the legitimacy of that inquiry never played any material role in the outcome of the ultimate decision, it seems difficult to say press releases or other statements to the media about the inquiry amount to a false statement of material fact even if they were knowingly false when made.

All of which leaves one with the unsatisfying outcome of the inquiry that the timeline of events might never be known, and the equally unsatisfying sense that not only do bad (stipulated) facts make bad law, but that dishonest clients make it difficult to address where the line is between a lawyer being able to take their client’s assertions at face value rather than performing due diligence (such as a phone call) to determine whether the client is on the up and up.