Vail Daily column: An attorney’s mixed obligations
More than once in my career, I have had a client who has lied to me. While I understand that clients are, after all, human and often scared, fibbing to your counsel really doesn’t make much sense. First, except in extraordinary circumstances, communications between a lawyer and his client are completely confidential. Second, the lawyer can act most efficiently in the client’s behalf only when he is fully apprised of all facts and circumstances pertaining to the matter for which the client came to see him.
Nonetheless, people still bend, withhold, and a times torture the truth.
What folks sometimes do, too, is ask the lawyer to do what the attorney cannot do; to lie or cheat or conceal on the client’s behalf. Ah … no. Simply no can do.
While the attorney has an obligation to advocate on the client’s behalf and to zealously vouchsafe the client’s interests and her secrets, those duties are not absolute. If a client asks the lawyer to cross an ethical line — to cheat or steal or misrepresent — then the lawyer may not so oblige. There is a distinction after all between zealotry and plain dishonesty.
In addition to his obligation to the client and to hold the client’s “secrets” confidential, the lawyer has a duty of truth and candor towards the “tribunal” (read that truth and candor to the court). A similar obligation is owed to opposing counsel and an obligation of “truthfulness” is owed in statements to others.
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Besides these specific ethical obligations which are imposed upon attorneys, there are overarching themes which influence the attorney’s ethical behavior. Perhaps most frequently invoked is Rule 8.4 of the Rules of Professional Conduct which holds, among other things, that a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer; engage in conduct involving dishonesty, fraud, deceit or misrepresentation; engage in conduct prejudicial to the administration of justice; or “engage in any other conduct that directly, intentionally and wrongfully harms others and that adversely reflects on the lawyer’s fitness to practice law.”
Most commonly, when a client stretches the truth a bit, the lawyer — at least at first — is unaware of the misrepresentation. It is the lawyer’s impulse to believe his client except in circumstances where the weight of evidence is indisputably to the contrary. Once that evidence comes to the fore, however, the lawyer cannot assist the client in perpetuating what would amount to a misrepresentation, fraud or miscarriage of justice.
An example might be helpful.
First, let’s say a client (let’s call him “Client”) represents to his attorney that when he sold his John Deere 9660 STS Combine to one Farmer Jones, the engine was in perfect working trim. In fact, when he sold the combine to Farmer Jones, he affirmatively represented that the engine was as sweet and perfect as Jennifer Garner’s smile. While Farmer Jones is suing your client for misrepresenting the true state of the beating heart of the John Deere, your client swears on the Testaments Old and New, the Quran, and the Shintoism that he has never, ever messed with the combine’s engine.
As the dispute progresses, a mechanic comes forward and calls you on the phone. His conscience has been bothering him. He says, he has some correspondence in his possession — and some photos too — that he exchanged with Mr. Client, making it explicit that the Client knew the engine was all kerfuffled and to please patch it up with bubble gum and duct tape so he could sell it to some unsuspecting sucker. That sucker, as it turned out, was our Farmer Jones.
You, the lawyer, say, in your best Jerry Maguire impression, “Show me the evidence!” Which the mechanic does.
Now, armed with this disturbing bit of enlightenment, what is the lawyer to do? Panic? Sure, for a moment perhaps. He has been made a dupe — thankfully unwittingly — to the Client’s scheme to cheat, defraud and disambiguate. He may not contribute to what he now knows is contrary to his obligation to protect and uphold the law.
If he’s smart, he will do this. He will call the client and say, “Client, we have to get together.” When they get together, he will say something like, “Perhaps this slipped your mind,” or “Maybe you forgot about this?” and give the client a chance to explain.
If the client dives back into the Testaments Old and New, the Quran and the Shintoism proclaiming he “don’t now nathing,” then it may be time to share with him the breath, width and scope of your ethical obligations. If he still refuses to come clean, then the wise attorney will withdraw.
Most times, though, when faced with the irrefutable, clients do come clean. And then a new strategy may be developed.
If I’m your attorney, then I’m on your side. But if you ask me to do what I ethically cannot, I owe an equal responsibility to share with you what the rules, attorney ethics and fairness dictate.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his e-mail addresses, firstname.lastname@example.org or email@example.com.