The term "too big to fail" has been used to describe the strength of banks entrenched in the mortgage foreclosure battle with homeowners. Florida has become a sort of poster child in foreclosure cases where more residents enter foreclosure each day. For now, the momentum seems to be shifting in favor of the consumer especially in light of a new development from the Florida Bar charging Florida attorneys with the duty to disclose shoddy foreclosure paperwork to the Court.
This development was reported in a Florida Bar News article which details a meeting of the Bar's Professional Ethics Committee at the Bar's Annual Convention in June. The committee voted 20-6 to uphold a Bar staff opinion advising a lawyer representing a bank that the duty existed.
The lawyer posed this scenario to Bar staff: a bank uses two employees to review and prepare affidavits necessary in a foreclosure. Employee one personally verifies the figures in the affidavit and signs off in the presence of a notary. Employee two uses an assistant to verify figures but signs off as if she personally reviewed them, sometimes not even in the presence of a notary. The lawyer wanted to know if he was required to report this client's activities. He also asked whether that duty remained when the disclosure would not change the outcome of the case, or if the case was closed or pending.
The Ethics Committee responded by saying that it doesn't matter what stage the case is in, but that Florida Rule of Professional Conduct 4-3.3 Candor Toward the Tribunal makes shoddy documents "false evidence", and proper for disclosure without condition. The opinion also cites Rule 4-1.2(d) prohibiting assistance of criminal or fraudulent client conduct, Rule 4-3.4(b) that prohibits fabrication of evidence or assisting a witness in false testimony, Rule 4-8.4(a) prohibiting violation of the Rules of Professional Conduct or assisting another in doing so, Rule 4-8.4(c) barring an attorney from conduct that constitutes dishonesty, fraud, deceit, or misrepresentation and Rule 4-8.4(d) which prohibits a lawyer from conduct prejudicial to the administration of justice as violations for a failure to disclose faulty foreclosure docs.
The Bar's opinion concluded that the attorney should advise the client to correct the affidavits or that he would have to withdraw and disclose the issue to the Court. The attorney also should withdraw from further representing the client in cases where they refuse to disclose the truth, being careful to make minimal disclosures when doing so.
This is just the latest development in the fight against some of the unscrupulous tactics that many banks and their attorney's have been perpetrating for a number of years. A Jacksonville Foreclosure Lawyer hopes this latest measure by the Florida Bar stops many of those actions.
