Duties to Attorneys, the Court, and Other Parties - Module 3 of 5

Module 3: Duties to Attorneys, the Court, and Other Parties

Duties to the Court

In addition to serving as an advocate for a client, a lawyer is an officer of the legal system, and is considered to have a special responsibility for the quality of justice.[1] As such, lawyers have duties to the court which are intended to ensure that lawyers avoid conduct that undermines the integrity of the adjudicative process.[2] 

First, there is the duty of candor. A lawyer may not make a false statement regarding facts or the law to the court. Likewise, the lawyer has a duty to correct any such false statement of law or fact which the lawyer had previously made to the court.[3] This includes a prohibition on offering evidence that the lawyer knows is false.  

If a lawyer comes to learn that his client or a witness called by his side has offered false evidence, the lawyer must take reasonable steps to remedy the false evidence, including disclosing it to the tribunal.[4] If a client insists that her lawyer assist her in presenting false evidence or committing perjury in court, the lawyer must inform the client that should she persist in giving false evidence, the lawyer must disclose this fact to the court.[5]   

The duty of candor also includes an affirmative duty on the lawyer to disclose to the court any controlling legal opinion adverse to the position of his client if opposing counsel has not already disclosed it.[6]

While lawyers have the duty of reasonable diligence in advocating for their clients’ interests, they are not obligated to press for every possible advantage on behalf of their clients. One limit on the extent of a lawyer’s advocacy is the duty to only present meritorious claims and contentions to the court. This means that a lawyer may not initiate a proceeding or assert or defend a claim unless there is a basis in law and fact supporting the claim which is not frivolous.[7]

While there is no definition of what is considered a frivolous claim or contention, the duty to make meritorious claims does not mean that a lawyer must have supporting evidence for all facts presented. Likewise, the lawyer is permitted to make assertions which he expects will become more fully developed through the discovery process and other means of investigation (as, for example, in a complaint, which initiates a lawsuit).

At the same time, lawyers must inform themselves about the relevant law and applicable facts to determine whether they can make good faith claims in support of their clients’ positions. A claim or action is frivolous if the lawyer cannot make a good faith argument that the claim is supported by law and fact.[8] When controlling law does not support the position of a party, a lawyer may argue that existing law should be extended, modified or reversed, if the argument is made in good faith.[9] Note that an argument can be made in good faith, and not be considered frivolous, even if the lawyer believes the argument will not ultimately succeed.[10]

The duty of meritorious claims applies to all court proceedings. However, the Rules of Professional Conduct recognize that since cases involving allegations of criminal activity can lead to incarceration, defense attorneys may defend the proceedings to require that each element of the criminal charge is proved.[11] In other words, a defense attorney may defend a man that she knows is guilty. While she should not make outright false statements, she can certainly do everything possible to hold the prosecution to its standard of proof and to argue that the prosecution has not met its burden.

In addition to the ethical rules, federal and state rules require that claims and defenses presented by lawyers must be warranted by existing law or by nonfrivolous argument for extending, modifying or reversing existing law or for establishing new law.[12] A violation of this requirement can lead to sanctions on the lawyer or law firm responsible for the violation, including fines and an order to pay the lawyer’s fees and court expenses of the opposing party.[13]

However, these rules also provide a period of time known as a “safe harbor,” in which a lawyer may avoid sanctions by withdrawing or correcting frivolous arguments or claims.[14]

Duty to Other Parties

As members of the legal profession and officers of the legal system, lawyers owe a duty not only to their client and the court, but to opposing parties and opposing counsel as well. Generally, a lawyer may not hinder an opposing party’s access to evidence, improperly influence witnesses or employ obstructionist tactics during the discovery process.[15]

Since documents and other forms of evidence are essential to establish a legal claim or to assert a defense, all parties to a legal matter have a right to obtain relevant evidence. As such, the Rules of Professional Conduct prohibit altering, concealing or destroying evidence pertinent to the matter at hand.[16] 

In addition to being contrary to a lawyer’s ethical obligations, destruction of evidence and falsifying evidence are criminal offenses, usually labelled “obstruction of justice.”[17]

Lawyers may not counsel witnesses to testify falsely.[18] However, a lawyer may coach a witness with regard to effective courtroom testimony, suggest choice of words and generally rehearse testimony with a witness prior to his appearance in court.[19] Lawyers are likewise not permitted to offer inducements to witnesses regarding their testimony. However, paying a witness’s expenses or compensating an expert witness are not considered improper inducements, and may be offered.[20]

Lawyers also have the general duty not to make false statements of law or material fact to any third party, including opposing counsel.[21] At the same time, though, there is no duty to inform the opposing party of relevant facts of which they may be unaware.[22] Likewise, leeway is afforded to a lawyer engaging in negotiations with the opposing party, in which complete candor is not expected. Statements concerning a party’s negotiating goals, or its willingness to compromise are thus not considered statements of material fact, and the duty not to mislead may not apply to them.[23] So, for example, a statement that “my client won’t settle for less than $1,000,000” is not necessarily unethical, even if false.

Ex Parte Communications with Judges

The legal system is predicated on impartial justice and open access for all parties to a judicial proceeding. As such, there are rules which limit how lawyers may interact and communicate with judges presiding in the case at issue between the parties.  

A lawyer may not communicate with a judge about any issues in a case without the knowledge or participation of the lawyer for the opposing party.[24] Such a communication, in which only one party participates in a meeting or otherwise interacts with the judge, is known as an ex parte communication. Likewise, a judge may not initiate an ex parte communication outside the presence of one of the parties about a matter pending before the court.[25]

Ex parte communications for scheduling or administrative purposes that do not deal with substantive matter are permitted if the judge reasonably believes that no party will gain an advantage. However, even in such cases, all parties must be notified about the substance of the communication.[26]  Other exceptions apply where the communication is necessary for an emergency, such as to obtain a temporary restraining order against a party whose attorney may not be readily available to be notified.

Note that conversations with a judge which are wholly unrelated to judicial proceedings are not considered ex parte communications. As such, lawyers are not prohibited from communicating socially or through professional associations with judges, as long as the interactions do not pertain to pending proceedings before the court.[27]

Communications with Third Parties

The Rules of Professional Conduct recognize the important functions that lawyers serve, whose primary purpose is to serve the interests of their clients. To protect clients who have chosen legal representation, and to promote the proper functioning of the legal system, all matters of legal significance must be communicated to a client through the lawyer who represents the client.[28]

As such, if a lawyer knows that someone is represented by legal counsel, the lawyer may not communicate directly with that person about the subject of the representation. The rule covers all contacts with represented parties, not only parties to a litigation. [29]

This rule applies even if the third party represented by a lawyer initiates the communication or agrees to communicate directly with the lawyer. It is incumbent on the lawyer to immediately terminate the communication if she learns that the other party is represented by a lawyer, regardless of whether the other party has consented to talk to the lawyer.[30] However, this limitation on communication with a represented person does not apply if that person’s lawyer consents to the communication.[31] 

Note that the parties themselves may communicate directly which each other, and a lawyer may offer advice to his client concerning such direct communications.[32]  

A different set of circumstances arises when a lawyer operating on behalf of her client is involved in a legal matter in which another party is not represented by counsel. Under such conditions, a lawyer’s duty to promote her client’s interests may come into conflict with the interest of the legal system in protecting people who may misunderstand the role of an opposing lawyer.

As such, the Rules of Professional Conduct instructs lawyers on the proper protocol for dealing with an unrepresented person. First, the lawyer must not state or imply that he or she is playing a disinterested role in the matter between them. If the lawyer knows or reasonably believes that the unrepresented party does not understand the lawyer’s role as an advocate for another party to the matter, the lawyer must try to explain her role as an advocate.[33]

The lawyer should inform the unrepresented person that her role is to promote the interests of a particular party, which should be identified, and not the interests of that person. Further, if the interests of the unrepresented party are known to be adverse to the lawyer’s client, which will often be the case, the lawyer may not give legal advice to the unrepresented party.[34] In some jurisdictions, lawyers may not offer any advice, legal or otherwise, under such circumstances.[35] Instead, if asked to give an opinion or offer counsel regarding the case, the lawyer must advise the unrepresented party to retain legal counsel.[36]

Despite these restrictions, lawyers may negotiate settlements with unrepresented parties, or draft documents for both parties to sign, as long as the lawyer does not mislead the unrepresented party about her role as a representative of her client.[37]

Public Statements

As officers of the legal system, it is incumbent on lawyers to act in ways which uphold the right to a fair trial. While this may come into tension with both the duty to act with diligence on behalf of a client, as well as the right to free speech, preserving the right to a fair trial often requires limits on what information may be disseminated about a pending legal matter prior to trial.[38]

To preserve this balance, lawyers involved in pending or ongoing legal proceedings may not make public statements that have substantial likelihood of materially prejudicing the proceedings.[39]  

To illustrate, consider an example of a highly publicized case involving a lawyer who represented someone accused of stealing drugs and money, who was arrested in an undercover operation by the police.

The lawyer publicly declared that his client was innocent and accused the police of committing the theft and framing his client. The Supreme Court held that such statements did pose a substantial likelihood of materially prejudicing the trial and upheld a state disciplinary action brought against the lawyer.[40]

Note that if a party other than the lawyer or his client makes public statements which create a prejudice against his client, the Rules of Professional Conduct permit the lawyer to respond publicly to protect his client and offer information which mitigates the negative publicity directed against his client.[41]

Prosecutors, who work for the government at the local, state and federal level, have the authority to bring criminal charges. With this special role come unique obligations to exercise their authority with care to protect the rights of both the innocent and the guilty.[42] Specifically, prosecutors are obligated to ensure that defendants in criminal trials are afforded due process, that guilt is decided on the basis of sufficient evidence and that precautions are taken to prevent the conviction of innocent people.[43]

As such, a prosecutor must refrain from prosecuting a charge if the prosecutor knows there is no probable cause to support that charge.[44] In addition, the prosecutor must make reasonable efforts to see that someone accused of a crime has been advised of his right to legal counsel and that the accused has reasonable opportunity to obtain legal counsel.[45]

Prosecutors also have a constitutional obligation to uphold due process by disclosing to the defense any material information that is favorable to the defendant’s case.[46] This duty to disclose includes any evidence known to the prosecutor that tends to negate the guilt of the accused party, as well as mitigating information relevant to criminal sentencing.[47]

If, after a conviction, a prosecutor learns of new material evidence that suggests that the convicted party did not commit the crime, the prosecutor must disclose the evidence to the defendant and investigate further to determine whether the defendant was convicted of an offense he did not commit.[48] If the new evidence demonstrates clear and convincing evidence of innocence, the prosecutors must disclose this to the court, and take steps with the court to set aside the conviction.[49]

In our next module, we’ll look at the conflicts of interest rules that govern multiple representations and other situations that could cause conflicting loyalties and which rules are corollaries to the attorney’s duty of loyalty.