19.01. Introduction

In prior topics we have focused primarily on a lawyer’s ethical obligations to the clients and to third parties. In this topic we shift focus and examine a lawyer’s obligations to the legal system itself. Adding this layer of obligation can put a lawyer in some interesting positions. For example, in prior topics we have discussed the importance of maintaining client confidences. However, this topic presents a situation in which a client wishes to lie to gain an advantage in a court proceeding. Now the lawyer is faced with a quandary – does the lawyer abide by the duty of confidentiality and allow the client to lie without disclosing it or does the lawyer’s duty to the tribunal trump the lawyer’s responsibilities to the client?

This is just one example where a lawyer has to decide how to proceed when there may be conflict between what the client wants and what is best for the truth-finding function of the judicial system. A couple additional examples. Is a lawyer responsible for disclosing authority that defeats the client’s case when the other side did not find/disclose the authority? Obviously, if the lawyer is doing what the client wants the she will not disclose the case, but if the goal is to ensure that the court has all the information necessary to make a correct decision on the law the information should be disclosed. What to do? The same question can be raised with regard to adverse facts. Does a lawyer have an obligation to present facts that are harmful to the client’s case? Once again, if the goal is to come to a correct outcome in the tribunal, the answer might very well be yes, but from the client’s perspective it seems unacceptable that the lawyer would do so.

And what if a client wants to testify on their own behalf but informs the lawyer they intend to lie to help their case? Certainly the client does not want the lawyer to disclose the fact that the client intends to lie. And remember the lawyer’s ethical duty of confidentiality. What’s a lawyer to do? Add to this the fact that the possibility that a witness could also seek to testify falsely (“I’ll testify that he was at my apartment on the night it happened so he’ll get off”). Does it make any difference if the client is a criminal defendant? We will have to address these questions as well.