By Steve Thorpe
Legal News
Michigan lawyer Ali Zaidi should be disbarred for alleged online and résumé fabrications, concluded the state attorney discipline board in a Jan. 11 opinion. They say he falsely claimed that he had a masters degree from Harvard, that he was admitted to practice in states he wasn’t, and even that he was on the U.S. field hockey squad that competed in the 1996 Olympics. Donald Campbell of Collins Einhorn concentrates his practice in Attorney Grievance Defense, representation in Judicial Tenure matters and Legal Malpractice Defense. In addition to his law practice, he has served as an adjunct professor of law at the University of Detroit Mercy School of Law, teaching courses in Ethics and Criminal Law, since 2002. He served 10 years as an associate counsel, Michigan Attorney Grievance Commission and four years as an assistant prosecuting attorney in Oakland County.
Thorpe: The state attorney discipline board described Zaidi’s résumé claims as “outlandish and extravagant.” Is this the worst case of background burnishing you’ve seen?
Campbell: To be candid, the more outlandish and extravagant the farther it is from being believable or reasonable to rely upon. Decades ago the Board opined that “A half-truth is as false as a total lie; in fact, it is a bigger lie, because it is more difficult to disprove.” Matter of Rosely DP28/81 (Bd Opn). That seems to suggest that a bold-faced lie is not nearly as bad. It further suggests that the more outlandish the lie then the greater chance it might have of being seen as harmless or even cute. But, the disbarment signals that the Board may not have been entirely honest with us all these years ago. Michigan would not be alone in having humorless regulators; there is a recent case in California where an attorney posted amateurishly photo-shopped pictures of her with A-list celebrities. (See the pics at http://cheezburger.com/8323531776). The Cal Bar said it was false advertising. She was also disbarred.
Thorpe: How can an attorney know when they’ve “crossed the line” between glorifying and falsifying?
Campbell: Professor Monroe Freedman wrote (34 Hofstra Law Review 771) that there are 3 ethical rules that are universally recognized, and unquestionably sound and desirable, 1) a lawyer shall not make a false statement of fact to a court; 2) a lawyer shall not make a false statement of material fact to a third person; and, 3) a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. His article then argues that there are circumstances in which zealous representation, which embraces the ethical requirements of competence and confidentiality can require a lawyer to make a false statement to a court or to a third person. Indeed, attorneys acting as “testers” in fair housing matters present themselves to prospective renters or sellers as people they are not. In representing a client, the line appears to follow the purpose behind the lie. The New York City Bar Association Ethics Opinion 778 found that it is ok to “dissemble” but you can’t “deceive” when you are representing a client and interacting with a third party. Not sure I could walk that line. On résumés and applications, at a minimum avoid the “outlandish and extravagant.” I’d also avoid the “half-truth.” Best to stick with the true and accurate.
Thorpe: Zaidi created a website for a nonexistent “Great Lakes Legal Group,” which he later said was on its way to being real, but just hadn’t happened yet. Does wishful thinking or treating
future plans as reality play a role in many résumé falsehoods?
Campbell: There is an old adage that one cannot lie about the future. The Board saw the website was a “now”-thing not a “later”-thing. One wonders if he could have crafted a “disclaimer” for his website (who reads disclaimers, right) that said it was not real. Or, what would the result have been if his résumé included a statement that among other hobbies and interests he was a: “Serial Liar?”
Thorpe: In states like New Jersey, Kentucky and Texas it’s actually against the law to put false academic credentials on a résumé. Is there a reason educational credentials get special attention?
Campbell: I was always told that the résumé gets you the interview, and the interview gets you the job. One might be more amused more than shocked by the extravagant claims on his résumé. As a risk management person, I am a little shocked that folks who did the interview did not vet the outlandish claims on the résumé before hiring. Courts also take academic résumés seriously. There is a case I teach from where the EPA used an expert witness with puffed-up academic achievement claims and the court, on appeal, overturned the verdict. US v Schaefer Equip Co, 11 F3rd 450 (4th Cir 2993). Vetting employees and experts is critical to what we do as lawyers.
Thorpe: Tell us about the principle of “after acquired evidence” where an employer facing a wrongful termination suit on a completely different basis can claim that the employee should’ve been fired anyway because of a faulty résumé.
Campbell: The U.S. Supreme Court in McKinnon v Nashville Banner, 513 US 352 (1995), cleared up a split between federal circuits. The Court held that “after acquired evidence” (AAE) could be used in accessing the injury to the plaintiff but was could not bar a claim. Previously, the argument was that the AAE was a defense to liability that could be used in the same way the “mixed-motive” doctrine had been applied (that is: a proper motive + an improper motive = dismissal). McKinnon, however, did not involve résumé fraud. Subsequently, the federal circuits have expanded the doctrine to include résumé or application fraud. Employer must show that the conduct would have gotten the employee fired, not just that the conduct would have prevented her from being hired.
Thorpe: Is it harder to maintain a résumé ruse in this era of the search engine? Why do people keep trying?
Campbell: Probably not. In an era of “fake news” it would seem that just about anyone can probably support a fiction through items planted on-line. I hear from time to time about how Wikipedia is subject to phony postings. My kids are being taught in grade school how to build a website (and how to post on Wikipedia). Still, there are many who believe that if it is on the Internet – it must be true. Bottom line, vetting and verifying of candidates for hire is easier today. You can effectively and thoroughly use of on-line public information in your diligence as the prospective law firm employer. There are limits on what you search out about a candidate, but you can certainly use the Internet to verify things that are represented to you by the candidate.
I am going now because I am hoping to add the Croatian National Curling Team for the 2020 Olympics to my CV.
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