Ethics

The New York Times describes a new affirmation procedure in New York, where foreclosure lawyers have to sign a special statement that affirms the factual accuracy of the documents that they are submitting. The story suggests that the new procedures are necessary to prevent lawyers from initiating foreclosure proceedings that lack a proper foundation.

On the one hand, this new process strikes me as odd, because I would think that the existing ethics and civil procedure rules would be up to the task of addressing this problem.  New York Rule 3.1(b)(3) says that a lawyer cannot ?knowingly assert[] material factual statements that are false.?  (Rule 3.3(a) contains similar language.)  ?Knowingly? is defined in Rule 1.0(k) as ?actual knowledge of the fact in question. A person?s knowledge may be inferred from circumstances.?  The applicable New York civil procedure provisions, which are referenced in the affirmation, impose similar obligations.  Given all of the stories associated with banks supplying false documents (i.e., given the ?circumstances?), it seems to me that foreclosure lawyers already have an increased obligation to verify the accuracy of the documents that they are filing and that the existing rules should therefore suffice.

On the other hand, perhaps there is something unusual about this particular problem that warrants heightened attention and verification procedures.  In particular, perhaps we should ratchet up the lawyer?s duties because of the high stakes (i.e., someone is losing a home) and because of the sheer volume of inaccuracies that have been reported.  But if these are the reasons for ratcheting up a lawyer?s duties, wouldn?t it justify ratcheting up the ethical obligations of lawyers who practice in other high stakes areas of law, where procedural problems commonly arise?  I suppose we do that in certain circumstances, such as for prosecutors under Rule 3.8, but even in that context, we don?t require prosecutors to affirm their facts to the same degree as foreclosure lawyers are being asked to affirm theirs.  So what justifies the heightened scrutiny?  Moreoever, if the existing rules do not suffice in this context, does it suggest that the existing rules and procedures are inadequate in other contexts as well?  If so, what are the contexts and how do we identify them?