Wednesday, September 22, 2010

Hiding The Ball, Dodgers Style.

What's in a word, as the Bard saith?

Ordinarily not all that much-and the only reason it's here in a law enforcement blog is to highlight how important truth is and how destructive falsehood can become when the litigation fat is in the fire.

In this case it doesn't smell sweet, and if I had to take a guess someone's career practicing law is going to be cut short if there's any honor among the members of the Massachusetts bar.

It seems that in the case of McCourt v. McCourt, a single word was changed in a settlement agreement by Frank McCourt's attorney Larry Silverstein, after the agreement had been signed and notarized.

"B-b-but Sparky!" you say, "h-h-how could one leetle word make so much of a difference?"

It's simple, little feller. Silverstein changed the word "exclusive" to the word "inclusive", the hoped for effect of which was to excerpt the ownership of certain assets from the reach of California's community property law.

In this case, it was ownership of the Los Angeles Dodgers baseball club, now worth several hundred million dollars.

On the stand, Silverstein testified that he thought, in certain circumstances, it was OK to switch a word in a legal document after it had been signed and notarized. As it happened there were two versions of the document, and the legal team representing McCourt ux was never advised that the document had been "fixed" until shortly before trial, although this was known to Frank McCourt's legal sleaze machine for some time.

The effect of the change and substitution of a few letters is what's significant here.

Had it been a mere correction of a scrivener's error-a misspelled word or a dropped comma, say- I don't think any one would be too concerned but when the effect is to strip one party of ownership rights to an asset that is worth millions of dollars, that's when it starts drawing attention.

Mass. R. Prof Conduct 3.4(b) states that a lawyer shall not-shall not-falsify evidence. Comment 2 states in part

"Subject to evidentiary privileges, the right of an opposing party, including the government, to obtain evidence through discovery or subpoena is an important procedural right. The exercise of that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in many jurisdictions makes it an offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. Falsifying evidence is also generally a criminal offense."

Rule 3.3 also provides that a lawyer shall not knowingly

"...offer evidence that the lawyer knows to be false, except as provided in Rule 3.3 (e). If a lawyer has offered, or the lawyer's client or witnesses testifying on behalf of the client have given, material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures."


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