Attorneys have a duty to their clients and to the court to be truthful and not to engage in any deceptive or misleading activities, or to communicate anything that not only does deceive the court or a client, but which could be reasonably construed to do so.
Attorney fraud is committed when a lawyer breaches his or her duty of fiduciary care to a client. For example, settling a case without the client’s consent or knowledge, embezzling a client’s funds that the attorney is holding in trust, or misrepresenting the material facts of a case to a court are instances of attorney fraud.
Attorney Fraud on the Court
Attorneys are considered officers of the court, although any party in a civil matter or criminal case is expected to be truthful or to not deceive the court. An obvious case of attorney fraud is bribing a juror to vote a certain way, or to bribe a judge to decide a question of law in favor of the attorney, or to dismiss a case, or to impose an extraordinarily lenient sentence on a criminal client.
Another instance of attorney fraud is perjury. Attorneys often file affidavits under penalty of perjury that all things stated in the document are true or that he or she reasonably believes them to be true. Knowingly stating a material fact that the attorney knows is false with the purpose to gain an advantage for the attorney or his or her client that substantially affects the case is perjury and punishable by a fine or possibly prison.
Similarly, an attorney who puts his or her client on the witness stand, or submits an affidavit given under oath, and knowingly allows the client to testify falsely, is committing attorney fraud by suborning perjury.
Prosecutorial misconduct could be construed as attorney fraud. This occurs when a prosecutor fails to turn over to defense counsel exculpatory evidence, or evidence that could exonerate a defendant, or allows a witness to testify falsely against the defendant.
More common forms of attorney fraud occur when a lawyer deceives the client, or acquires fees or funds at the expense of the client. Attorneys have been known for staging phony accidents to defraud insurance companies, or persuading a client to lie during a deposition as to how an accident occurred or that certain injuries and other damages were sustained.
Attorneys can charge whatever fees they want but attorney fraud is committed where he or she charges for costs that were not disclosed in a written agreement or written in cryptic language, or which are not incurred.
While failing to communicate with a client is a common complaint among clients and may be an ethical violation, it is not necessarily attorney fraud. Settling a case without the client’s permission or collecting fees in excess of what was stated in a written agreement is considered attorney fraud and exposes the lawyer to serious disciplinary action by the state bar association.
One of the worst scenarios of attorney fraud are persons who are unlicensed attorneys who pose as certified attorneys and give damaging legal advice or who appear in court representing clients and collect fees as a result.