Duties To the Court
Candor Toward the Tribunal
As we discussed, lawyers are officers of the court and thus are obliged to be truthful and scrupulous in all dealings to protect the administration of justice. Without truthfulness, a court cannot function. Its health is entirely dependent on the respect that participants have for the oaths they take. It is disturbing that the functionality of our system of justice is dependent on such a thin veneer of trust. As such, when an officer of the court lies, it is an affront to our entire system.
Recall that President Clinton was impeached not because he had an affair with an intern, but because he lied under oath. If he had admitted this affair from the outset there would have been a lot less food for the media to chew. You might say that Kenneth Starr and his team were equally at fault for attempting to make a private affair a scandal to shake the foundations of our government. From that perspective, perhaps Mr. Starr and Co. brought a frivolous claim that triggered petty lies and deceptions. No matter what side you took in the scandal, candor toward the tribunal was an issue that all were forced to consider.
With that in mind, let’s look at some of the basic rules of candor when dealing with a tribunal.
[Incidentally, you might be wondering why we’re using the word “tribunal” instead of “court.” Consider that a lawyer may represent clients in situations outside of a courtroom. Particularly popular today are alternative dispute resolution settings, where participants enter into agreements to arbitrate or mediate with the assistance of a third party. (In arbitration, a third party makes a legally binding decision based on the facts set before him. In mediation, a mediator assists the parties in agreeing to resolve the dispute by contract). Lawyers also appear on behalf of clients before administrative authorities, such as an employment discrimination board. Since these settings aren’t normally considered “courts” we refer to them in aggregate as “tribunals” where decisions based on facts are made.]
That said, a lawyer must not knowingly:
(A) Make a false statement of material fact or law to a tribunal;
(B) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
Sometimes a party has an affirmative obligation to come up with information, and this is one of them. Neglecting to tell the whole story by purposefully omitting important facts could serve to assist criminal activity. Say a lawyer for a defendant corporation in an environmental hazard suit neglects to provide his adversary with a discoverable note stating that one of the corporation’s employees long ago told the firm he dumped some fluorescent green, slimy noxious material into a lake used for drinking water. All things considered, the failure to come up with a discoverable “smoking gun” could constitute the failure to disclose a material fact.
(c) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
This is a big deal for lawyers writing briefs to a court. It might also be a big deal for you if you are asked to perform legal research for an attorney on a case. In discussing this rule, let’s first review a bit about what a brief is in the context of litigation – perhaps the word is bandied about too often without proper explanation.
Essentially, a brief is a report provided by the parties to a case in which the facts of a case are stated, and the law of the jurisdiction in which the court sits is recited. In the brief, a lawyer will apply the facts of the case as his side sees them to the law of the jurisdiction. The end result is a discussion of what the law holds regarding the issue under scrutiny. A court may request the attorneys to submit a brief for any issue that pops up in a case – be it an issue regarding the laws of evidence or the rules of procedure or the laws on a substantive discipline such as property.
For example, take a brief about a suit in trespass. A lawyer will state the facts of the trespass – what the defendant did and where he did it. Then the lawyer will “brief” the reader on what the law on trespass is in the jurisdiction. A defense lawyer’s brief will demonstrate that the acts of the defendant do not fit the definition of trespass according to the law of the jurisdiction. A plaintiff’s brief will demonstrate that the facts do match the definition of trespass in the jurisdiction.
Sometimes these briefs are all the judge has at his disposal to make a decision on an issue. Most of the time, a judge or a clerk will also research the laws to ensure that the lawyers have properly cited them, but there is a chance that a busy court will not have the time or the resources to do this. In that case, the court will rely on the lawyers to do their research.
Unscrupulous attorneys may purposefully neglect to cite the proper law in the jurisdiction, if they find that the law is not consistent with their side of the case. Without the “offensive” precedent, a lawyer’s case may seem a whole lot stronger. Omitting adverse precedent to get a court to hold for your side is, as stated above, a violation of the ethical rules.
Oftentimes briefs are filled with precedents that seem to contradict one another. Authorities from several jurisdictions must be cited if the presiding court’s jurisdiction has not yet ruled on the meaning of the law that is in question. A court sometimes will take into consideration the decisions of courts in other jurisdictions in deciding what the law means in light of the facts of the case at bar. All this adds up to chaos in interpreting the law if lawyers are omitting or fudging their citations in briefs. A lawyer in submitting his brief makes an affirmation that he has in good faith researched and stated the laws accurately. Failure to do so is an affront to the court and will result in professional discipline.
(D) A lawyer must not knowingly offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer must take reasonable remedial measures.
All of the aforementioned obligations continue throughout the process of litigation, up through the final appeal to the United States Supreme Court if necessary.
The Model Rules hold that “a lawyer may not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous…” Model Rule 3.1.
Essentially, this means that a lawyer must have a good faith belief that his claim or defense has a reasonable chance, under both the facts of the case and the applicable law, of being considered seriously by a tribunal.
A claim is not frivolous simply because “the facts have not first been fully substantiated” or because the lawyer believes that the client’s position will not convince a court. See Comment  to Model Rule 3.1.
In order to decide whether a claim or defense is frivolous, the attorney has to take into consideration whether he is making the assertion only because the client desires to harass or injure a person. The attorney must also consider whether he is able to make a good faith argument on the facts he faces.
Generally a criminal defense attorney has more latitude than a civil litigator when it comes to asserting a defense that might be considered frivolous. The criminal defense attorney is permitted to “defend the proceeding as to require that every element of the case be established.” See Model Rule 3.1. The stakes are especially high in criminal cases – a defendant could be incarcerated for life or even risk capital punishment. As such, a criminal defense attorney will be entitled to argue on behalf of his client with extraordinary zeal.
EXAMPLE: In arguing on behalf of your client, a defendant on trial for murder, you use every means at your disposal to prevent the state from meeting its burden of proving all the elements of its case. One of your tactics is a smoke-and-mirrors type of closing argument --- a monumental, long-winded discussion of every single piece of the prosecution’s evidence and every witness that took the stand over the course of a month-long trial. Your closing argument lasts a whole week – but in theory, everything you said had a basis in reason in relation to the facts presented by the prosecution. In a civil case, a court might look negatively upon such a tactic, but because the defendant’s life is at stake, the court might give you tremendous leeway to do everything in your power to argue against the state’s case.
Notwithstanding the leeway a criminal defense attorney has in regards to his arguments at court, there is still a threshold which, if crossed, constitutes full-fledged frivolity. A criminal defense lawyer must not make frivolous objections in order to disrupt the court proceeding, may not make motions simply to harass the prosecution, and may not use tactics simply to delay the proceedings.
Issues Relating to False Evidence
The rules of professional responsibility hold that a lawyer must refuse to offer evidence that the lawyer knows is false, regardless of the client’s wishes. A lawyer may refuse to offer evidence that the lawyer reasonably believes to be false even if the client instructs him to use it.
EXAMPLE: Say your client, who is challenging a will, insists that you introduce into evidence a letter that the client claims is his father’s will. You saw the client writing the letter with his “bad hand” just prior to the proceedings that day, right outside the courthouse. The rules hold that you must refuse your client’s wishes in introducing this document as his father’s will.
On the other hand, say you didn’t see your client composing the will, but that you reasonably believe it is a fraud. The rules hold that you may refuse to offer it into evidence.
Note, as we have seen before, the rules emphasize the difference between “may” and “must” in prescribing a lawyer’s conduct.
Here we will discuss a lawyer’s obligations to the court when it comes to issues related to perjury. For the most part, a lawyer serves a policing function, to ensure testimony elicited for the decision maker is helpful and accurate.
False Testimony by a Witness who is not a Client
Generally, a lawyer cannot call a non-client witness whom he believes will lie to the court. If the lawyer discovers before the end of the proceeding that a witness has in fact lied, the lawyer has an obligation to inform the court.
EXAMPLE: Say you find out through a very reliable source that your client, an underworld boss, has paid off an “associate” to testify falsely in his behalf. As a lawyer and an officer of the court you are not even entitled to call this witness “associate” to the stand, let alone ask this witness questions in court to elicit false testimony.
False Testimony by a Client who is a Defendant in a Criminal Case
In a criminal case, as we learned in Chapter Two, the client decides whether or not she will testify, not the lawyer. The United States Constitution guarantees the criminal defendant the right to testify. The ethical rules for lawyers account for the criminal defendant’s rights. In most jurisdictions, if a criminal defendant insists on testifying in a manner that the lawyer knows is false, the lawyer should:
a) First try to persuade the client not to testify falsely. The lawyer should also try to persuade the client to retract her statements if she has already testified falsely.
b) If the lawyer fails to persuade the client, the lawyer must seek leave to withdraw.
c) If withdrawal will not cure the errors in testimony, or if the court does not grant leave to withdraw, the lawyer should disclose the matter to the court, even if this will trigger a mistrial.
Legal observers once wondered whether a lawyer’s revelation of his client’s perjury or the threat to reveal perjury in criminal representation violates a defendant’s constitutional right to effective assistance of counsel. In 1986, in a case called
False Testimony by a Client in a Civil Proceeding
Generally, if a lawyer knows that a client in a civil proceeding will falsely testify, the lawyer must refuse to call the client as a witness. If the lawyer learns after the client testifies that the client committed perjury, the lawyer should follow the aforementioned steps for lawyers representing criminal defendants.
EX PARTE PROCEEDINGS
"Ex parte" is a term used for when the court or judge meets with one side only in a case. We pride ourselves on our adversarial system – in the best case, the truth wills out through vigorous argument and zealous advocacy. Sometimes, however, a judge is empowered to meet with only one of the parties to a case, without the other side present. Most of the time the content of ex parte proceedings will be integrated in the court record.
A good example of an ex parte proceeding is in an initial hearing related to domestic violence. The plaintiff, perhaps in an emergency, may come to the court to obtain a temporary restraining order which prevents the defendant from coming near the plaintiff or the plaintiff’s premises for a specified period of time. At the initial hearing, a judge will hear the plaintiff’s side of the case and make a decision whether or not the facts of the case as the plaintiff stated trigger the need for a temporary restraining order.
The danger of an ex parte proceeding such as this is that the plaintiff is not rebutted by an adversary, whose view of the events under scrutiny might be rather different. To guard against permanent harm being done to a defendant in this scenario, any order that is given will be temporary and both parties will be required to appear before the court after a short period, often 10 days.
The rules of professional responsibility generally hold that in an ex parte proceeding, a lawyer is obligated to reveal all material facts known, even if those facts impact negatively on the client’s case.