When Criminal Issues Arise in Civil Litigation – What to Do?
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. February 22, 2013
By Abbey L. Kaplan
When large amounts of money are at stake in a civil litigation, parties may resort to a host of criminal activities in order to guide the case towards a favorable outcome. As civil litigators, we often do not recognize criminal activity because we are generally accustomed to dealing only with “civil” issues. However, it is not uncommon for criminal activities to find their way into the civil courts when a party resorts to illegal activities to limit its exposure. Examples include forgery of key documents, perjury, suborning of perjury, modification of financial data, fraud on the court and “spoofing.” Spoofing occurs when an email address is highjacked and emails are purportedly sent from an individual who uses the email address but in fact, the emails are sent by a third party.
It goes without saying that if you are counsel for a party that is committing illegal activities during the course of litigation, you are required to follow the procedures set in place by the Florida Bar’s Rules of Professional Conduct.
But what if you are on the other side? If criminal activity is not brought to the court’s attention quickly, it can negatively influence the outcome of a case. So when it does come up throughout the course of a case, how do we handle it? First, it is important to build your record so that you can present your findings to the court and explain the basis for your allegations of criminal activity. Once the court finds that criminal activity has or may have been committed, it has the power to sanction the offending party and, if appropriate, its counsel. The court can also refer the conduct to the State Attorney’s office for prosecution, if appropriate. Finally, both the court and opposing counsel can refer an attorney’s illegal or unethical behavior to the Florida Bar.