Duties To the Opposing Party
As we have discussed, emotions often ride high in court cases, especially when a party’s livelihood is on the line. Zealous advocacy could easily devolve into a dirty fight to the death if it weren’t for strict ethical rules regarding the treatment of adversaries.
There are a multitude of opportunities for lawyers in possession of power and information to do harm to others. The rules are designed to prevent unnecessary harm and maintain a sense of decorum among professionals engaged in representation.
There is a general sense that the level of collegiality among those engaged in the profession has diminished due to frequent instances of unethical behavior. Disgraceful tactics, both inside and outside the courtroom, have not only tarnished the image of the legal profession, but have made lawyers a whole lot less happy with their careers. A lawyer who fails to conduct himself with professional acumen when dealing with the opposition places his own reputation in jeopardy. He also may bring unnecessary harm to a client by igniting an unsavory battle with the opposition.
Here is a list of “no-can-do’s” when dealing with an adversary and his counsel:
(A) A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act.
For example, in corporate representation, an attorney might be in the custody of a great deal of a client’s documents. It would be very easy to file a “smoking gun” document in an unobtrusive box, among thousands, where it would never be found by the opposition. Obviously this is a form of obstructing access to evidence, and is entirely impermissible.
(B) A lawyer must not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.
Expert witnesses are oftentimes paid by parties for their services. This is allowable because it is reasonable to compensate the expert for his or her time spent investigating the case, researching and testifying. However, contingent fees for experts, payable if the party prevails in the case, are generally prohibited out of fear that a financial incentive will govern the party’s testimony. Of course, a lawyer would be subject to severe discipline if he promised the expert a special gift for testifying falsely.
(C) A lawyer must not knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
This means that a lawyer does not have the right to disobey a rule unless he has a good faith argument against the validity of the rule itself.
EXAMPLE: A court rule entitles your adversary to make certain information requests from you. You believe the information is protected. The court sides with your adversary and holds that the information is not protected. If you believe the legal rationale behind the court’s order is invalid, you may make an open refusal based on your belief that you do not have a valid obligation to make that information known. You might have to make a challenge in an appellate setting. However, if you do not have a good faith challenge to the court’s rule, you have no right to dispute the rule – your intransigence would be unfair to the opposing party and the court.
(D) A lawyer must not, in pretrial procedure, make frivolous discovery requests or fail to make reasonably diligent efforts to comply with legally proper discovery requests by an opposing party.
It would be entirely unfair to your adversary if you made an unnecessary request for information that you know would take an eternity to prepare. This type of request during the discovery process would be prohibited. Litigation is costly and difficult. As officers of the court, lawyers should do their best to expedite the process. Frivolous requests exacerbate gridlock in the courts and frustrate all parties involved.
(E ) A lawyer must not, in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence. A lawyer also must not assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
EXAMPLE: In his opening argument to the jury, a plaintiff’s lawyer throws in some asides related to the defendant’s anger management problems and citations for domestic abuse, when the case has absolutely nothing to do with either of these issues. This seems obvious, but lawyers occasionally and impermissibly do damage to the integrity of the court by subtly painting the adversary in a false or damaging light by bringing up issues that are irrelevant to the facts of the case. Bringing up facts that can help a client is permissible, of course, if the facts used are relevant and admissible. It’s not fine if the lawyer lies to the jury or tries to prejudice the jury against an opposing party in order to make his client’s case look better.
An attorney also must not assert personal knowledge of facts involved in the case. A lawyer may not usurp the role of a witness or bolster a witness’s testimony by falsely asserting that the lawyer knows something to be true. For instance, a lawyer may not look at the jury and says, “Remember what this witness said. I know for a fact what this witness said is true.” This lawyer is unacceptably asserting that he, in addition to the witness, possessed knowledge about the matter at issue.
Likewise, a lawyer’s personal beliefs should not be discussed in the court, as they also can be used to mislead a jury. A lawyer’s job is not to make his own views clear. His job is to make the facts available, so that the tribunal can assess the facts of the case.
EXAMPLE: Say a defense lawyer is giving a closing argument in a trial where his client, a teacher, is accused of physically abusing a student. In this case, the prosecutor must prove that the teacher did in fact abuse the student. If the defense lawyer’s strategy is to make the jury believe that teachers should have a right to smack insolent children in order to have his client exonerated, then the lawyer is impermissible in using his own beliefs to sway the jury’s opinion.
EXAMPLE: If your client is on trial for bigamy, you would be violating the ethical rules by saying to a jury that even if your client did commit bigamy, the Lord sanctions bigamy and that it is a natural act for a man in the prime years of his life. Clearly you’re expressing a personal belief to sway the jury in an impermissible fashion.
Generally speaking, a lawyer may not bring a proceeding or assert an issue unless there is a good faith basis for doing so. A criminal defense lawyer may, however, defend a proceeding so as to require that the prosecution prove every element of a case.
For example, a criminal defense attorney who spends two whole months calling witnesses to the stand to prove that his client did not and could not commit murder would be doing his job properly if his aim were to rebut a prosecution’s charge and refute the prosecution’s claims. If the defense attorney is merely asserting irrelevant issues as “smoke and mirrors” or to obfuscate and confuse the jury, a court might take steps to stop the defense from wasting time.
(F) In certain states, a lawyer may not threaten to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute.