What are the obligations of my civil attorney, or one I seek to retain, if I present him with a handwritten contract, purportedly bearing the signature of the late George Steinbrenner, that says that I own 10% of the New York Yankees? Imagine I tell my lawyer that, out on a lark one summer afternoon, Steinbrenner and I met while swimming in the ocean at Jones Beach (or, more likely, Southampton...this is, after all, the George Steinbrenner). I tell my lawyer that a harsh undertow carried Steinbrenner out to sea and that I heroically swam out and saved him. My narrative is impassioned and convincing, and my delivery makes clear that the contract in my hands was hard-earned: in his uncommon gratitude for my bravery (and perhaps because of a secret disappointment in his sons), Steinbrenner wrote out the contract and we both signed on the dotted line.
Of course, as luck would have it, Steinbrenner is now dead and unable to corroborate or dispute my story. I manage to provide my lawyer with a confirmed sample of Steinbrenner's handwriting in an effort to prove that his signature is not a forgery, and I ask my lawyer to promptly file a lawsuit against the Yankees, the Steinbrenner Estate, and Steinbrenner's family. But my lawyer says, "No, I need a lot more before I can proceed." But why? Isn't my lawyer supposed to accept what I say and follow my direction, particularly because 1) I am oh-so-convincing, and because 2) my lawyer possesses no facts whatsoever, and never will, that go against what I'm saying? Doesn't an attorney have an ethical duty to zealously represent his client? It's not as if I told my lawyer that Steinbrenner came back from heaven (or wherever) one night, and, while seated at my bedside, decided that the only way to adequately reward my uncommon valor was to give me a 10% stake in the Yankees!
Clearly, if you do or even if you don't know who he is, you owe defendant Paul Ceglia the presumption of innocence. Even the Manhattan United States Attorney, who had Ceglia arrested three weeks ago for filing a bogus lawsuit in New York -- a lawsuit built on allegedly forged and false documents designed to establish at least a 50 percent interest in Mark Zuckerberg's mega operation, Facebook -- would unhesitatingly acknowledge the propriety of this presumption... notwithstanding any personal views of the prosecution's merits. Indeed, every defendant warrants that presumption in the American criminal forum, even when gut instinct would lead the average, uninvolved stranger off the street to conclude that the accused is most likely guilty. And we owe defendants the presumption even as we cringe during press conferences as defense attorneys invoke the presumption as being the true stuff of our Constitutional system.
Does an attorney likewise owe a presumption of innocence to his criminally accused client? What about the civil litigator, who harbors doubts, perhaps even grave doubts, about the client's integrity and the truthfulness of the information the client conveys for the purpose of preparing legal papers? The answer is that, minor limitations aside (such as the rule that a lawyer may not allow a client who has admitted guilt in private to lie on the witness stand), a criminal lawyer is not constrained by what the client tells him and whether he actually believes it.
And so, Ceglia's criminal attorney, now that he has been charged, will properly operate within that protocol in defending his client, even if he fully believes. (Or even "knows" that Ceglia is downright guilty -- that he outrageously concocted fabricated documents to support the bogus Facebook lawsuit. In fact, according to the criminal complaint filed against Ceglia on October 25 by United States Attorney Preet Bahara, Ceglia actually cut, pasted, and substituted contract pages to create an agreement that purported to say something that an existing contract did not.)
And what of the series of back-to-back litigators, some of whom are associated with extremely reputable law firms, who filed and pursued, with near scorched-earth fervor, the Ceglia lawsuit against Zuckerberg and Facebook? Though the reasons were never publicly disclosed, these litigators successively resigned their representation. Were these litigators free to accept at face value their client's claim of holding a legitimate contract when they filed civil complaints designed to gain monetary (or injunctive) relief on their client's behalf? Notably, Facebook's lawyer, Orin Snyder, has stated that "Facebook will send a strong message that it does not tolerate legal shakedowns and will take aggressive action against all those who file abusive lawsuits against the company." Does Snyder intend to target Ceglia's current and former attorneys in taking such action, and adversaries in other litigations against Facebook?
These questions lead us to one ultimate question: what if any legal regimen exists to stop the civil litigator from employing the same "ethic" that indisputably applies to criminal lawyers? Simple. The U.S. Constitution's Fifth Amendment right to the presumption of innocence just doesn't apply in the civil arena. If a plaintiff files a lawsuit, and particularly if his complaint must be sworn to -- as is the requirement in many jurisdictions -- the complaint must allege truthful facts. What is more, the attorney who signs the complaint must do so in good faith. If he does not, the attorney actually risks incurring court-imposed financial sanctions against both himself and his client for failing to exercise due diligence before putting his name on the client's civil complaint. He also risks the court referring him to a disciplinary committee to investigate his fitness to continue to practice law.
But wait: isn't a civil client entitled to an attorney who will litigate the civil claim as zealously as the criminally accused's attorney will defend his client? Indeed, he is. But a civil plaintiff (or, for that matter, a civil defendant), is not entitled to an attorney who simply acts as an automaton scribe -- a lawyer who advances the civil claim without inquiring into the bona fide legitimacy of that claim, oblivious to the reality that the client may be less-than-completely-candid... or worse.
Interestingly, a client -- let's take Ceglia, for example -- is permitted to have the same attorney represent him both for criminal and civil purposes. In the criminal case, the attorney can sit back and literally do nothing but put the prosecution to its burden of proving guilt, and argue to the jury at the end of the case that the prosecutor simply failed. In contrast, to succeed in the civil case, the attorney he must affirmatively file a complaint in good faith after performing the required due diligence. This disparity is underscored by Rule 11 of the Federal Rules of Civil Procedure, which specifically dictates that by signing or filing court papers, or by advocating a client's cause, an attorney certifies "to the best of [his] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that the factual claims have evidentiary support, or will likely have it after a reasonable opportunity for further investigation and discovery."
One may wonder why a whole bunch of lawyers took Ceglia on as a client and then decided to cut their losses and abandon him. Andrew Ross Sorkin of the New York Times argues that the almighty buck probably moved them, at least until they began to scratch their heads and conclude that the client had asked (or was asking) them to go too far, potentially causing them to risk their reputations at the bar, or even their licenses to practice law.
Maybe so, or maybe not. We will probably never really learn what motivated these attorneys to pull out when they did. Did they come to question Ceglia's purported truths the way that federal prosecutors ultimately did, after first zealously waiving the flag for him? There is certainly no question that Zuckerberg's lawyers brought the case to the Feds and that Mr. Snyder's statement (quoted above) was designed to warn future civil claimants against Facebook that they too would face the dire consequences Ceglia is now confronting.
As for my heroic swimming encounter with Mr. Steinbrenner, it is clear that many lawyers would file that lawsuit on my behalf. Though I do not question his ethics or professionalism, I note that one attorney did actually initiate a lawsuit in federal court against the John F. Kennedy Estate on behalf of a plaintiff improbably named John Fitzgerald Kennedy who claimed that he was the "legitimate" offspring of a physical union between the late President Kennedy and Marilyn Monroe. Go figure!
The truth is, one should probably vet a lawyer the same way a lawyer should vet his client's claim when it causes the attorney's eyes to roll when he first hears it. If the allegation doesn't pass the decent lawyer's 'smell test' -- not a legal standard, but still a useful way to consider real-world issues -- it's likely it won't pass anyone else's smell test, especially the judge's. A lawyer should indeed accept a client's truth, but only if there is good reason to actually see it as true. Part of the value a client derives from his lawyer's zealousness is actually whether that lawyer zealously maintains his objectivity and professionalism and whether he is willing to tell the client what the client needs to hear - before the Feds decide to do so, and in much harsher tones. One wonders whether Ceglia, a man whose history demonstrates him to be a litigious individual, will one day try to sue his former lawyers for not having told him what they perhaps should have about the strength of his claim... the truth!
Joel Cohen is a partner in the New York office of Stroock & Stroock & Lavan LLP, where he practices white-collar criminal defense law. He also teaches Professional Responsibility at Fordham Law School. The author is a regular contributor to The Huffington Post. The views expressed are his personal opinions.