The Emails That Were Made Last Month
You defend Bramble Logistics in a wrongful dismissal action. The central issue is whether the plaintiff, Ken, resigned or was dismissed. Bramble's operations manager, Sal, swore an affidavit attaching a June 4 email from Ken saying 'I'm done, effective immediately,' and Sal's reply accepting the resignation. The emails are listed in the defendant's affidavit of documents served three months ago. Two days before the summary judgment motion, Sal says: 'I made those emails last month. Ken was fired - we just needed something in writing.' He refuses to correct the affidavit and instructs you to file the motion record containing them.
1. What are your obligations, and can you file the motion record?
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You cannot file it, and the problem is larger than a single motion.
The duty to the court is paramount. You must not knowingly present false evidence, and you must not mislead the tribunal. Filing a record you know contains fabricated documents is not a grey area.
First step: counsel the client. Tell Sal plainly that the emails are false, that they cannot be used, and that the affidavit and the affidavit of documents must be corrected and Ken's termination acknowledged. Give him the chance to do it voluntarily.
If he refuses: withdraw. Because the matter is before a tribunal, you do not simply send a notice - you apply to be removed as solicitor of record. On that application you disclose no more than necessary, but you must not make a statement that is misleading, and you cannot say the relationship has broken down if the real reason is the client's fraud.
Correct the record. The false documents are already in a served affidavit of documents, so the court has been misled. Confidentiality yields to the extent necessary to correct that. You must take steps to ensure the record is corrected; a silent withdrawal leaves the fabrication in play and is not enough.
2. Sal warns: 'Withdraw and I'll tell the court you told me to make those emails.' How does that change your position?
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It does not change your obligation - you still cannot file the record - but it changes your record-keeping.
- Make a detailed, contemporaneous note of the conversation in which Sal disclosed the fabrication: date, time, who was present, what he said, what you advised, and his response. Do this today.
- Do not destroy anything. The fabricated emails, the drafts, and any metadata are evidence. If your firm holds the originals, preserve them.
- You may disclose confidential information to defend yourself against an allegation of impropriety. If Sal makes the threat to the court or the regulator, you are entitled to answer it fully, including disclosing what he told you.
- Do not be bought off. You may not continue to act, or file the record, in exchange for his silence, and you may not agree to a mutual concealment.
If the threat is made publicly, tell your insurer immediately and consider whether you need your own counsel. Do not engage with Sal about it in the heat of the moment; put your advice in writing.
3. Can you keep acting for Bramble on its other files?
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Not on this matter under any circumstances, and probably not on the others without careful thought.
This matter. The fraud puts you in direct conflict with the client: your duty to the court and your duty not to assist dishonesty cannot be reconciled with his instructions. Withdrawal is mandatory.
Other matters. Ask three questions:
- Is there a conflict between your duty to the client and your own interest, now that he has threatened to blame you? Usually yes, at least until the allegation is resolved.
- Does the knowledge you now have bear on the other files - for example, a pattern of creating records? If so, you cannot use it, but you also cannot unknow it.
- Can you continue to give independent, objective advice to a client who has tried to pressure you? Often not.
The safe course is to withdraw from the litigation, decline new instructions until the matter is resolved, and tell Bramble in writing to retain new counsel. Do not disclose the reason to anyone beyond what is necessary.