Does the attorney who is an officer of the court then be required to be sworn in? or does the Judge just say it is not required because atty is an officer of the court.
Is there any rule that can be referred to regarding what is proper procedure when it comes to attorneys testifying? I know the attorney lied to the court and the court has agreed the information provided was not accurate and I want to put pressure on the attorney as before I show the court the rest of the perjury by the attorney, I want to know procedurally what I can do in court. Unless attorneys are above the law in the eyes of the court. (to make clear it is not a client of the attorney in this perjury it is the attorney committing perjury in sworn statements)
Some additional considerations for you:
1. If the attorney made the statement to the Court in a signed pleading, consider filing a motion for sanctions under Mass. R. Civ. P. 11(a) and asking for a "show cause" hearing wherein you can cross examine the lawyer (who, as my colleagues have stated, must be sworn in like everyone else). If there truly has been fraudulent conduct, the Court may very well report the lawyer to the Massachusetts Board of Bar Overseers for disciplinary action.
Rule 11(a) provides:
(a). Signing. Every pleading of a party represented by an attorney shall be signed in his individual name by at least one attorney who is admitted to practice in this Commonwealth. The address of each attorney, telephone number, and e-mail address if any shall be stated. A party who is not represented by an attorney shall sign his pleadings and state his address, telephone number, and e-mail address if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay. If a pleading is not signed, or is signed with intent to defeat the purpose of this Rule, it may be stricken and the action may proceed as though the pleading had not been filed. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted.
2. Whether the statement was in writing or not, consider Mass. R. Prof. R. 3.3, which provides:
RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client, except as provided in Rule 3.3 (e);
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) 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.
Mr. Thomas is licensed to practice law in Massachusetts. This response is not legal advice and does not create an attorney/client relationship. This response is in the form of legal education and is intended to provide general information about the matter within the question. Often, the question does not include significant and important facts and timelines that, if known, could significantly change the reply. Mr. Thomas strongly advises the questioner to confer with an attorney to make sure he or she gets all relevant information to make informed decisions about the subject matter.
You've asked this question before and the answer is the same. A lawyer testifying as a witness has to be sworn in like any other witness. The fact that they're an officer of the court is separate from the oath they take as a testfying witness.
If their testimony is false, the other party can and should cross-examine them, impeach them, and offer their own evidence in rebuttal.
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Administrative Law Lawyer
I concur in Ms. Koslyn's answer but I add these additional considerations: The big question is whether the attorney has relevant information to offer as testimony. Just because the attorney has made inaccurate statements to the court, even under oath, does not mean that there has been perjury. Sometimes people are just wrong. And, unless the information is germane to the court's determination of contested issue, the court is unlikely to allow the attorney to testify about the inaccurate statements.
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