LEO #1608 MISREPRESENTATION; PERSONAL INJURY; DUTY TO REPORT;
PLANTIFF'S ATTORNEY SEEKING DUPLICATE COMPENSATION FROM
TWO DEFENDANTS FOR SAME INJURIES; PERJURY/FALSE EVIDENCE
You have presented a hypothetical situation in which Plaintiff's
attorney represented plaintiff-passenger of an automobile that was
rear-ended. Plaintiff's attorney filed a claim with the
tortfeasor's insurance company and provided medical bills
indicating that the plaintiff had been treated, starting two days
after the accident and continuing for approximately six months, by
a chiropractor and a medical doctor. You indicate that Plaintiff's
attorney settled plaintiff's claim with the tortfeasor's insurance
company for $7,500.00, which covered medical bills as well as pain
and suffering.
You further indicate that the same plaintiff was a passenger in
another vehicle that was rear-ended the day after the first
accident and the same attorney represented the plaintiff in his
claim with the second tortfeasor's company (defendant #2). In that
claim, plaintiff's attorney submitted the exact same medical bills
from the chiropractor and the medical doctor. You indicate that
the attorney for defendant #2 denied that plaintiff was injured in
the second accident and Defendant #2 also denied that any amount of
money was owed to the plaintiff based upon the previous settlement
and the use of the identical medical bills for this claim.
Further, you indicate that, during the course of discovery, defense
counsel filed a subpoena duces tecum request with the chiropractor.
In reply, the chiropractor sent an itemized bill for treatment
relating to the first accident. In reference to any treatment for
the second accident, the chiropractor submitted a note to the
defense counsel stating that he did not treat the plaintiff for any
injuries from the second accident but only treated him for injuries
relating to the first accident.
You advise that Plaintiff's attorney received a copy of the
doctor's letter in discovery; however, he proceeded to trial and
submitted those into evidence, contending that the bills from the
chiropractor and the medical doctor involved treatment solely for
the second accident.
Finally, you indicate that Plaintiff's attorney never informed the
insurance company from the first accident of the second automobile
accident. Furthermore, when attorney for defendant #2 questioned
the plaintiff, under oath, about the first accident, he denied
being injured as a result of the first accident.
You have asked the committee to opine whether, under the facts of
the inquiry, plaintiff's attorney has acted unethically in
submitting the same bills for both accidents and in seeking
compensation from defendant #2 for injuries the plaintiff sustained
from the first accident, after having received the copy of the
chiropractor's letter before trial.
The appropriate and controlling Disciplinary Rules related to your
inquiry are DR 1-102(A)(4), which states that a lawyer shall not
engage in conduct involving dishonesty, fraud, deceit, or
misrepresentation which reflects adversely on a lawyer's fitness to
practice law; DR 7-l02(A)(4) and 7-102(A)(5) which provide,
respectively, that a lawyer shall not knowingly use perjured
testimony or false evidence, or knowingly make a false statement of
law or fact.
The committee has previously opined that it is improper for an
attorney who has executed answers to interrogatories and who has
represented to opposing counsel that the answers may be treated as
if they were signed under oath by the attorney's client to include
in said interrogatories answers which are false. See LEO #743.
The committee is of the opinion that the facts you have presented
indicate that a statement of the chiropractor, in response to a
discovery request, provides that the chiropractor did not treat the
plaintiff for injuries from the second accident. Thus, based on
the facts presented, the committee is of the opinion that
plaintiff's attorney was aware, prior to trial, that the bill and
treatment related only to the first accident, and thus, that
plaintiff's attorney has knowingly made a false statement of fact,
in violation of DR 7-102(A)(5), by submitting the bills in evidence
and contending that such bills related solely to the second
accident. More importantly, however, the committee believes that
the facts also indicate that the plaintiff, when questioned under
oath by the attorney for defendant #2, denied being injured as a
result of the first accident. The committee opines, therefore,
that plaintiff's attorney has also knowingly used perjured
testimony or false evidence, in violation of DR 7-102(A)(4). Such
conduct may also be violative of DR 1-102(A)(4). See LEO #1429.
Further, the committee also opines that, since the defense attorney
has been able to ascertain that plaintiff and plaintiff's attorney
were aware that the bills and treatment related only to the first
accident, rather than the second accident as alleged at trial, and
that plaintiff was not injured as a result of the first accident,
the attorney for defendant #2 may have a duty to report such fraud
and misrepresentation to the tribunal under DR 7-102(B)(1) and to
the appropriate professional authority under DR 1-103(A).
[DRs 1-102(A)(4), 1-103(A) and 7-102(A)(4) and (5), 7-102(B)(1);
LEOs #743, 1429
Committee Opinion
July 21, 1994
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