On January 8, 2011 I addressed the potential legislative shift in Virginia from a non-judicial foreclosure system to a judicial foreclosure system here. I made a reference to an ethical benefit of the judicial foreclosure system explained below.
If Virginia moves to a judicial foreclosure system the Rules of Professional Conduct will augment the seriousness with which attorneys dealing with foreclosure situations marshal facts and argument. Judicial foreclosure will require that attorneys present documents to and appear before Circuit Courts. Under the RPC Circuit Courts constitute tribunals.
RPC 3.3 governs the duty of candor that an attorney must show toward a tribunal. Most importantly an attorney may not present facts or law which the attorney knows to be false, and an attorney must correct facts when the attorney discovers their falsity after presentation. For a judicial foreclosure system this means the attorney must do some good faith work to ensure the truthfulness of documents submitted and statements made to the court potentially preventing problems like “robosigning.”
Just as important, when an attorney appears before the court without the opposing party, such as the distressed homeowner present, the attorney is required under RPC 3.3(c) to disclose facts to the court that will assist the judge even if it could potentially harm the attorneys’ client’s position.
What does all this mean? When an attorney has to put their name to something that is going before a judge or is going to be evaluated based on statements made to a judge, an attorney is more likely to go to greater lengths to verify information before pursuing a foreclosure.
Please note, for those people encountering this ethical rule for the first time: RPC 3.3 does not prohibit an opposing attorney from presenting their client’s case even if the facts from their client are directly contradictory to the facts of the opposing party.
This is no panacea, but it does provide a time, place, and public record for people to see what has occurred before a foreclosure sale.