Legal Ethics

If You're Lying To The Judge, Try Not To Keep A Public Instagram Account Of The Truth

One selfie too far.

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Some people like to take pictures of their food. Others like to take pictures of their sanctionable conduct. This is the story of the latter.

When Lina Franco, a New Jersey attorney acting as local counsel for a pair of plaintiffs seeking to file a class action over alleged labor law violations, missed a November 23, 2016 deadline to file for conditional class certification, it was a fairly egregious screwup. Indeed, if this story ended here, it would be a compelling argument for investing in quality practice management software. Unfortunately for Franco, the story does not end here.

On December 9, sixteen days after the deadline, Franco filed the motion along with a letter explaining that she missed the deadline because of a family emergency that sent her unexpectedly to Mexico City. It’s a sympathetic story, but also one that makes you think that — over the course of two weeks — she could have mentioned it to the court sooner.

It’s also a story that’s mostly made up.

Within days, the defendants cried foul, pointing out inter alia that Franco had been in New York on the day of the deadline, and spent the entire time before she finally filed the motion either in New York or vacationing in Miami:

On December 12 and 13, 2016, Defense counsel objected to Plaintiffs’ belated filing of the motion. Defense counsel pointed out numerous inconsistencies in Ms. Franco’s purported reason for the late submission. See Mots. to Strike, D.E. 51, 52; Ltr. from Benjamin Xue, Esq., Dec. 13, 2016, D.E. 54. Specifically, Mr. Xue stated that Ms. Franco’s public Instagram account3 revealed that Ms. Franco was not in Mexico City when the motion was due on November 23, 2016. According to Mr. Xue, Plaintiff was in New York City and then Miami, Florida during the entire time she claimed to be in Mexico City addressing a family emergency. See Ltr. from Benjamin Xue, Dec. 13, 2016, D.E. 54. In an accompanying declaration, the Defense attached screenshots of the Instagram photos as exhibits, which confirmed much of Mr. Xue’s allegations. See Declaration of Puja Sharma (“Sharma Decl.”), Dec. 13, 2016, D.E. 54-1 to 54-11.

In retrospect, there were other signs. Franco’s December 9 letter pinning her absence on a family emergency in Mexico came complete with an itinerary noting that she had a flight to Mexico City on Thursday, November 21, 2016. To quote the court: “However, November 21, 2016 was indisputably a Monday, not a Thursday.” Well, sure, on this world. But what if Franco is from the Berenstein Bears world?

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For her part, Franco claims an earlier trip to Mexico City for a family emergency had left her vulnerable and contributed to her poor judgment. That’s certainly a plausible explanation, even if it’s not a valid excuse. Hopefully, she can overcome that going forward.

In the meantime, she’ll be shouldering a hefty $10,000 fine and reminded not to lie to courts anymore.

Late-Filing Lawyer’s Excuse Undone by Vacation Photos on Instagram [New Jersey Law Journal]

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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