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Better to be an adulterer than an adulterer and a liar

A mentee recently asked me if one should admit an allegation of adultery in a responsive pleading when the adultery is obvious.  While I think the question has a clear cut answer, my view isn’t shared by all of my colleagues.  I continue to see adultery denials in responsive pleadings even when the adultery is obvious.  Although admitting adultery in a pleading is uncomfortable it’s always a better legal strategy to admit the obvious.

If one’s client has committed adultery a denial isn’t going to change that fact.  It will, however, have significant negative consequences.  First, it requires the opposing party to go to the trouble and expense (in legal fees, witness fees, and investigator fees) to prove the adultery.   In awarding attorneys fees and costs the family court places great weight on which party prevailed on contested issues and on whether one party’s position on a contested issue was unreasonable.  Denying obvious adultery frequently leads to the judge awarding significant fees and costs to the other party.

Further, falsely denying adultery will impact the family court’s credibility determinations.  A Latin phrase most law students learn is “falsus in uno, falsus in omnibus,” which translates, “false in one, false in all.” The concept is that a witness who willfully testifies falsely in one matter is not credible on any matter.  A party who falsely denies obvious adultery is unlikely to prevail on any contested credibility determinations.  Since a family court judge’s credibility determinations are entitled to great deference, lying about obvious adultery is an excellent method of losing every contested issue.  In contrast, by admitting the adultery, one retains the ability to argue for the client’s credibility–the argument being that if the client admitted adultery, which is obviously uncomfortable, he or she is likely truthful.

Since adultery remains a crime in South Carolina one could respond to an adultery allegation by invoking the 5th Amendment right against self incrimination.  Such an approach is too clever.  Family court is a civil proceeding, allowing the invocation of this privilege to create an adverse inference: the judge can use the invocation against the client to determine adultery took place.  Further the credibility benefits of admitting adultery are lost if one pleads the 5th.   Finally, invoking this privilege allows the opposing party to attempt to strike any pleadings that seek affirmative relief.

In denying adultery in a responsive pleading, I assume the client is denying the adultery to his or her attorney.  An attorney who denies adultery in a responsive pleading despite the client admitting it to the attorney violates Rule 11 of the South Carolina Rules of Civil Procedure (“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it…” ) and Rule 3.3 of the South Carolina Rules of Professional Conduct (“A lawyer shall not knowingly make a false statement of fact or law to a tribunal”).

An attorney confronted by client who denies obvious adultery should review the evidence suggesting adultery and discuss the risks of denying the obvious.  To merely accept the client’s assertion and deny the adultery is to make an already bad legal position even worse.

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