When lawyers are sworn in at the beginning of their careers, they promise to tell the truth at all times. They are reminded that they are now 'officers of the court'. This means in part that they must put justice before money and winning in court.

Unfortunately, if there were a "lie-meter" that automatically clocked each lie told by a lawyer - even those told just in a court - the meter would surely register in the billions, if not the trillions.

Over the years, AHRC has believed that an important tool to correct wrong-doing, is to publish it. Bacteria love the darkness, and hate the clear light of day.

Yesterday, in a court room in Santa Ana, California, Simon Freedman, a partner in the HOA law firm of Peters and Freedman, caused the "lie-meter" to go up by another notch.

He was appearing by phone at an Ex Parte Hearing by a homeowner to request the court's permission to exceed the 15 page limit in the filing of a motion. Freedman had filed a defamation suit against the homeowner that has 64 causes of action, is 62 pages long, and has 126 pages of exhibits. The homeowner argued that 15 pages was not sufficient to state his case against such a lengthy brief.

Freedman opposed the motion, and stated that the complaint is a simple one of defamation and most of the exhibits are only one page.

Simply put, this was a lie to the court.

First, the brief has 64 causes of action. While it is not known what the Guiness Book of Records lists as the longest brief ever filed, it certainly must be up there among the front runners. A 64-cause-of-action brief is hardly simple.

Second, and even more seriously, there is only one exhibit that is one page in length - not "most" as Freedman testified. There are 26 exhibits totalling 126 pages. A little math shows that each one on average is almost 5 pages. An examination of the exhibits shows literally only one exhibit as having only one page.

Fortunately, the judge was not deceived by this and granted the homeowner's motion.

Just another little lie? A little exageration?

If only this were so, it might be harmless in the overall scheme of things. But it is not.

If one leaves aside the daily flood of lies that many lawyers tell in court and to their clients, it is still serious because this is not the first time that a Peters and Freedman lawyer has lied in court.

Michael Kim of the same law firm has been caught at least three times telling lies to judges. In one instance, on December 29, 2004, he told a Judge Brooks that he had given the required notice of an Ex Parte hearing by 10a.m. the day before to a homeowner, when, in fact, he had not. In another case, at a deposition held before a judge, he told the judge that he had not been present at the deponent's deposition on the first day, when in fact he had sat there all day taking notes. In a third instance, under penalty of perjury, he had claimed that over $30,000 in legal fees had been incurred in an appellate case, when in fact, they belonged to an entirely different case. The judge ordered those fees to be removed.

Part of the cumulative effect of such a practice of lying is to undermine the very system of justice itself. When lying becomes normal, the normal becomes a lie.

In Illinois a few years ago, a journalism class at Northwestern University was able to show that 13 of 26 inmates on death row were innocent. The students did this by showing that police officers and others lied. When lying in a death penalty case becomes no big deal - when the liars know that an innocent person will be put to death - then clearly a profound cancer has infected the justice system, and it is no wonder that there is a significant cynicism among the general public about our legal system. Such a cancer was at work in Santa Ana yesterday.

In California, Civil Code Sec. 47 (Footnote 1) grants an absolute immunity to fair and accurate reports about a judicial proceeding. Similar statutes probably exist in other states.

The truth can flourish only in the sunlight. So, let the light in!

FOOTNOTES:

1. CALIFORNIA CIVIL CODE SECTION 47:

47. A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding,
(3) in any other official proceeding authorized by law, or (4) in theinitiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:

(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom noaffirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.

(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of
depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, "physical evidence" means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.

(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.

(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.

(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.

(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.

(2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.

47.5. Notwithstanding Section 47, a peace officer may bring an action for defamation against an individual who has filed a complaint with that officer's employing agency alleging misconduct, criminal conduct, or incompetence, if that complaint is false, the complaint was made with knowledge that it was false and that it was made with spite, hatred, or ill will. Knowledge that the complaint was false may be proved by a showing that the complainant had no reasonable
grounds to believe the statement was true and that the complainant exhibited a reckless disregard for ascertaining the truth.