Washington DC -- National Legal and Policy Center filed a Complaint with the Florida Bar today requesting that David Boies and Mitchell W. Berger, attorneys for Vice Present Albert A. Gore, Jr., be investigated for apparent professional misconduct relating to an allegedly false affidavit reportedly offered to two Florida courts last week.
"In order to protect the public, the legal profession, and the courts, Boies and Berger should be investigated." NLPC Chairman Ken Boehm said. "Using a false affidavit to influence events in and out of court is an outrage. If that is in fact what an investigation of Boies and Berger finds, then they should be severely disciplined."
NLPC’s Complaint -- available at <www.nlpc.org> -- draws on recent articles from the Chicago Tribune and the Washington Times that reported that Boies and Berger allegedly requested and allegedly used an affidavit from an Illinois attorney about the treatment of "dimpled" ballots in an Illinois case and that the affidavit appears to be false. The Illinois attorney later reportedly corrected the affidavit but apparently Boies and Berger have not taken remedial action to address the allegedly false affidavit. The affidavit is an exhibit to NLPC’s Complaint.
The Complaint stated "Given the attached affidavit and the reported facts in the two news articles [Boies and Berger] may have violated and/or may continue to be in violation of [the] Florida Rules of Professional Conduct..." One of the possible violations cited in the Complaint includes Rule 4-3.3(a), "Candor Toward The Tribunal" which states:
A lawyer shall not knowingly:"Conduct like this should not be tolerated," Boehm said. "Assuming Boies and Berger first submitted the affidavit believing it was true, they should now take remedial action. And their apparent failure to do so raises serious questions."
(1) make a false statement of material fact or law to a tribunal; . . .(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) permit any witness . . . to offer testimony or other evidence that the lawyer knows to be false.
A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures. (Emphasis added).
Boies is a member of the New York State Bar, but he as been permitted to appear in Florida courts via a legal tool called pro hac vice. The Complaint details how Boies is subject to the disciplinary jurisdiction of the Florida Bar. The Complaint will be copied to the New York State Bar. Berger is a member of the Bars of Florida, New Jersey, and Tennessee. The New Jersey and Tennessee Bars will also be sent a copy of the Complaint. Additionally, a copy of the Complaint will be sent to each of the seven Justices of the Supreme Court of Florida and three relevant Florida Circuit Court Judges including Circuit Judge N. Sander Sauls.
Founded in 1991, NLPC is nonpartisan, nonprofit
foundation promoting ethics in government. NLPC’s Government
Integrity Project has filed complaints against Republicans and Democrats
alike, including a recent Federal Election Commission Complaint against
Rep. Jim Moran. In September 2000,
NLPC filed a Pennsylvania Bar Complaint against AFL-CIO
Secretary-Treasurer Richard L. Trumka. NLPC was a plaintiff in
the 1993 lawsuit which succeeded in opening the records of Hillary
Rodham Clinton’s Health Care Task Force.
For a copy of the Complaint against
Boies and Berger, please visit <www.nlpc.org>.