March 23, 2014

Lying On A Filing Will Get You Disciplined

Category: Attorney Discipline | Author: | Share:

As a litigator, I’ve seen attorneys spin, bend, and creatively characterize facts. I’ve even seen an attorney browbeaten for committing a Rule 11 violation, namely making a factual contention that lacked evidentiary support and was plainly incorrect. But while I’ve heard stories, I’ve yet to see an attorney commit an outright lie in filed papers. And if I do, I hope that they suffer the same fate as Terrance Kinnard did in In re Kinnard, 2. N.E.3d 1267 (Ind.2014), Cause No. 49S00-0905-DI-235, a suspension without automatic reinstatement.

Mr. Kinnard represented a putative father in a paternity action. Paternity was established and the trial court entered a judgment granting custody to the mother (who lived in Florida); granting visitation as the parties could agree; ordering that the child’s surname be hyphenated, with the father’s name first, and ordering the father to pay child support.

Mr. Kinnard moved to correct error, but failed to serve the mother. The trial court granted the motion and signed the order Mr. Kinnard tendered, which adjusted the child support obligation down and inverted the hyphenation of the child’s name (misspelling the mother’s name).

A year later, Mr. Kinnard petitioned to modify custody, and he made several false statements in that petition, including that the father had been awarded visitation pursuant to the Parenting Time Guidelines, that the mother had denied visitation, and that the mother lived in Indianapolis. He did serve this motion on the mother—at her Florida residence.

The mother filed a grievance against Mr. Kinnard, but he upped the ante by filing a complaint against her, asserting defamation. The Court found that this complaint “was unfounded in both fact and law.” (emphasis in original). Mr. Kinnard only dismissed the complaint after the Disciplinary Commission urged him to do so.

The Court found that Mr. Kinnard’s “baseless and vexatious” defamation suit was his “most serious misconduct.” But the other conduct described above also violated  the “bedrock legal principle” that “documents filed in a court proceeding contain only truthful allegations.” Mr. Kinnard was suspended for six months without automatic reinstatement.

The decision does not give much of a hint regarding how Mr. Kinnard explained his actions, other than mentioning possible confusion over the prosecutor’s role in the paternity action as a justification for not serving the mother. Maybe Mr. Kinnard just took his client at his word, without independently verifying the facts. Maybe Mr. Kinnard’s record keeping was so poor that he missed basic things, like the spelling of the mother’s name. Maybe there are other reasons (like those that JLAP can resolve) that led to this series of events. But one thing is clear: don’t sue someone who has filed a grievance against you for defamation, particularly if the grievants statements are demonstrably true.

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