Attorneys have a higher duty of care towards their clients than non-attorneys. When an attorney is retained to represent someone in a business transaction, lawsuit, civil or criminal proceeding, they have a fiduciary duty to handle their client’s affairs and funds honestly and in their best interests. If the attorney breaches that duty, then he or she could be guilty of attorney fraud.
Attorney fraud can be committed on the court as well as toward a client or some other party. Fraud in the context of attorney fraud is anything that is intended to deceive another person or the court by speech, activity, omission, lack of activity, innuendo, or gesture. It is also the suppression of the truth or the knowing presentation of a falsehood.
Some common examples of attorney fraud are as follows:
It is simple enough to determine if an attorney is licensed to practice law in your state by going to your state bar association’s website. However, some people may impersonate an attorney and use his or her bar number. In many cases, clients have no reason to check on an attorney’s status. A client becomes a victim of attorney fraud when he or she accepts and relies on legal advice that the unlicensed individual claims is valid, or is represented by an unlicensed attorney in court to his or her detriment.
Scams and Deception
An unethical or devious attorney may commit attorney fraud by inducing a client to sign a retainer agreement that contains confusing language to the attorney’s benefit, or to sign documents purporting to stand for something other than what the attorney claims. An attorney may have a client appoint him or her as their executor of a will, or even name them as a beneficiary while they lacked the mental capacity to do so.
Lawyers commit attorney fraud when they mishandle or misappropriate funds that have been entrusted to them. Funds in an attorney-client trust account can only be used for client transactions, though an attorney is permitted to withdraw fees with the client’s permission or pursuant to a written retainer agreement.
Other instances include prematurely settling a case or claim to the attorney’s benefit without the client’s consent or by falsely representing certain facts or aspects to persuade the client to settle.
When an attorney collects fees from a client and neglects to perform the activity or task for which he or she was retained, the attorney may be subject to a claim of attorney fraud.
All licensed attorneys are officers of the court in the jurisdictions where they practice. As such, they are under a duty to follow all court rules and to be ethical regarding any court business.
Attorneys often submit statements or affidavits given under penalty of perjury or give statements to the court. If an attorney knowingly includes falsehoods in an affidavit, or lies to a judge in court, he or she has probably committed attorney fraud but may only be subject to civil contempt by the court and discipline by the state bar, unless the misrepresentation resulted in pecuniary benefit to the attorney at the expense of a client or another party.
Making promises or giving money to a juror or judge to influence the outcome or resolution of a case is an obvious case of attorney fraud. Also, persuading a witness or client to lie under oath or to deliberately mislead the court is suborning perjury, a criminal offense.
Prosecutorial misconduct may be attorney fraud as well, since a prosecutor by suppressing the truth is defrauding the court as well as the criminal defendant. Prosecutors are supposed to search for the truth and to turn over any exculpatory evidence to the defendant’s attorney, to disclose credibility problems of witnesses and expert witnesses, and to not allow testimony the prosecutor knows or suspects is false. In most instances, however, a prosecutor who has committed misconduct is rarely disciplined.