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The eyes have it…

The American case of Rossbach v Montefiore Med. Ctr., 2021 US Dist. LEXIS 147031 (SDNY 5 August 2021) is a cautionary tale for solicitors in any jurisdiction, and a reminder that we need to check what our clients tell us.

Ms Rossbach brought an action founded on her claims that her supervisor sexually harassed her, and in support of her claims produced an image of text messages allegedly sent by her supervisor.

One of the messages made use of the so-called ‘heart eyes’ emoji (essentially a smiley face with love hearts instead of eyes), which Rossbach said was displayed on her iPhone 5.

Unfortunately for Ms Rossbach, the emoji in her image was the version produced by the operating system iOS13 or later, and her iPhone 5 could not support or run any system more recent than iOS10. In other words, the image she claimed to have captured from her iPhone 5, being texts from her supervisor, could not possibly have been displayed on that phone.

There were other reasons to doubt the image, given her testimony in regard to how the image itself was captured, but no so obviously damaging as the impossible image.

The court also looked at the conduct of Ms Rossbach’s attorney, Mr Daniel Altaras, and found it wanting. Despite his opponents having raised concerns as to the possibility of his client having fabricated the images, Mr Altaras ignored several opportunities to explore that possibility.

It noted that he had “negligently or recklessly failed to perform his responsibilities as an officer of the court”, especially after he had been alerted to the potential fabrication, at which point he had “opportunity and obligation to conduct a reasonable investigation regarding the authenticity” of his client’s evidence.

Ultimately the attorney and his firm were made jointly and severally liable for the costs and outlays of the supervisor, and no doubt his reputation has taken a hit.

Even though we have a different regime here in Queensland, solicitors do have a fundamental duty of independence, and a specific duty to make their own forensic assessment of a client’s case when litigating. A practitioner who loses sight of that could find themselves on the wrong end of a costs order, or worse.

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