Sharp Practices in the Legal Profession

Hon. William H. Burgess, III, B.C.S. 

"Pettifogger" 3-D sculpture by Daniel Midholt, based on a design by Stefan Andersson.  Image found at https://www.artstation.com/artwork/zND4d. No claim to copyright.

One of the more vexing aspects of the legal profession is having to deal with attorneys who engage in sharp practice.

“Sharp practice” is a pejorative expression for unscrupulous conduct, undertaken for the purpose of obtaining an unfair advantage over another, that may (or may not) be technically within the applicable law or rules and is considered immoral, unethical or improper. In business dealings, sharp practice often involves activities that come very close to breaking the law.¹ In the legal profession, the greater part of sharp practice occurs on a continuum just beyond the proper bounds of zealous advocacy,² honor,³ and ethics but just short of outright fraud. It is the sort of behavior that no self-respecting lawyer or judge should have to suffer and no properly functioning legal system should tolerate.

Vacatur of Sentences Obtained by Fraud or Misrepresentation

Under the common law, any court of record had absolute control over its orders, decrees, etc., and could amend, vacate, modify or change them at any time during the term at which rendered. Control now is in the courts during the period allowed by the rules of court, terms (as used in common law) having been abandoned. This restriction does, however, not apply to such orders, judgments or decrees which are the product of fraud, collusion, deceit, mistake, etc. Such may be vacated, modified, opened or otherwise acted upon at any time. This is an inherent power of courts of record, and one essential to insure the true administration of justice and the orderly function of the judicial process. As between the parties any judgment or order procured from any court by the practice of fraud or deception may, in appropriate proceedings, be recalled and set aside at any time, whether entered in a civil case or a criminal case.¹