Ethical Responsibilities to the Tribunal

Ethical Responsibilities to the Tribunal

An attorney is required to zealously represent a client; however, this representation is limited by the requirement that such representation be within the bounds of the law. There is a moral component to that representation that is found in Rule 3.3 of the ABA Model Code, which covers a trial attorney’s candor toward the tribunal, to other counsel, and to third persons.
 
RULE 3.3 ABA MODEL RULES OF PROFESSIONAL CONDUCT 
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) 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; or
(4) 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 shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. 
In an adversarial proceeding, be it an administrative hearing, a trial, an arbitration, a motions hearing, or an appeal, the duty of the deciding officer is to take the evidence presented, determine the facts, and to apply those facts to the law to render a fair and impartial decision. In order to do so, it is important that the attorneys appearing before him present truthful evidence and properly present the law.
 
Zealous representation requires the attorney to assess every issue that will arise during the course of the trial, determine which can be contested, and decide what the facts are with respect to each issue. The attorney must then prepare for trial, presenting that evidence that is most favorable to his side of the case. In a civil case, it is not required that the attorney present evidence that is adverse to his client nor that he voluntarily notify the other party of evidence adverse to his client.  When asked a direct question, the attorney must truthfully respond. See Ausherman v. Bank of Am. Corp., 212 F. Supp. 2d 435, 448 (D. Md. 2002), which held that an attorney may be disciplined for intentionally deceiving opposing counsel.
 
TRUTHFUL FACTS
 
Statements by Attorneys
 
Judges also demand candor from an attorney and dislike “artful” language that may be technically factual but that is intended to mislead. For example, during a sanction hearing for misconduct in federal court, an attorney was asked whether he had been involved in prior state court sanctions. The federal court found that the attorney had recklessly misrepresented the facts and failed to clear up the matter after the hearing. The court stated that while the attorney could “ . . .argue that he answered truthfully on technical grounds, he [could] not maintain that he responded in good faith.” In re Moity, 2008 U.S. Dist. LEXIS 1696 (D. La. 2008). Because of the misrepresentation and other inappropriate behavior, the attorney was suspended for a period of one year. In Sheppard v. River Valley Fitness One, L.P., 428 F.3d 1, 5 (1st Cir. 2005), an attorney was sanctioned because he argued that the terms of a third-party settlement agreement were not relevant to the case at bar, while the attorney was using the agreement to induce a favorable settlement from opposing counsel in the case. In corresponding with opposing counsel, the attorney had included part of the agreement, but not the most important terms, and had sought to seal the agreement so that opposing counsel would not learn the true terms. See also Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 948 (D. Cal. 2005). Because of the misrepresentation and other inappropriate behavior, the attorney was suspended for a period of one year. 
 
While the attorney is not required to volunteer facts, he must provide truthful information to the court. During a DUI trial, an attorney in Colorado stated that his client had no prior alcohol-related offenses, while the attorney knew that a DUI offense was pending in another county. The attorney later pleaded guilty to perjury, and his license to practice law was suspended. People v. Cardwell, 2001 Colo. Discipl. LEXIS 60 (Colorado Supreme Court Presiding Disciplinary Judge Appellate Discipline Commission 2001).
Factual Evidence
 
The attorney is not permitted to present a witness that he knows will lie when he gets on the witness stand. The commentary to Rule 3.3 recognizes the dilemma faced by the attorney when the client insists on testifying and the attorney knows the testimony is false.  
If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done -- making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the lawyer's version of their communication when the lawyer discloses the situation to the court. If there is an issue whether the client has committed perjury, the lawyer cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to counsel and as such a waiver of the right to further representation.
Remedial Action, Comment, RULE 3.3 ABA MODEL RULES OF PROFESSIONAL CONDUCT. In Brown v. Commonwealth, 226 S.W.3d 74 (Ky. 2007), a criminal case, the attorney could not prevent his client from testifying falsely and properly notified the court. However, the client was granted a new trial because of the attorney’s actions in walking out of the courtroom. An attorney in a bankruptcy matter was recommended for disciplinary proceedings for failing to prevent the clients from testifying falsely and for misrepresenting facts. Romano Bros. Bev. Co. v. D'Agostino-Yerow Assocs., 1996 U.S. Dist. LEXIS 10730 (D. Ill. 1996).
 
Many criminal attorneys never ask the client if he performed the act he is accused of; he does not need to do so. It is the attorney’s job to force the prosecutor to prove his case. If an attorney knows that his client is guilty as charged, he should avoid putting the client on the witness stand. There are valid theories of defense that an attorney would be wise to consider. These include exclusion of evidence, entrapment, validity of laboratory tests, and challenges to forensic evidence. In In re Peasley, 208 Ariz. 27 (Ariz. 2004), the attorney was disbarred because he had intentionally elicited false testimony against two defendants in a capital murder-trial.

PRESENTATION OF THE LAW
 
In presenting the law on a disputed issue, an attorney is required to research the statutes and precedents and honestly present them to the judge. When the law is clearly against the client, such as when a statute controls, the attorney has a duty not to bring a frivolous case. However, the law is rarely that clear, and attorneys can and should attempt to distinguish prior case law or another interpretation of a statute whenever it is reasonable to do so. What the lawyer cannot do is knowingly cite a case that has since been overruled or reversed or misstate a provision of a statute. In Tyler v. State, 47 P.3d 1095 (Alaska Ct. App. 2001), an attorney was fined because he failed to bring controlling precedent to the court's attention when it was trying to assess the validity of the plea entered by the attorney’s client. 
Attorneys frequently prepare trial memoranda before trial to make sure they have considered all of the issues likely to arise during the course of a trial and that they can cite legal precedent when arguing motions before, during, and after a trial. It is incumbent on an attorney to Shepardize the legal precedents just prior to any hearing to make sure that any cited precedent has not since been overruled.
 
EX PARTE COMMUNICATIONS
 
An attorney is not supposed to engage in ex parte communications with a judge or hearing officer on a matter before that judge or hearing officer. However, there are times when such communications are necessary. When such circumstances arise, the attorney is required to take reasonable steps to contact the opposing party or, if the party is represented, opposing counsel, relate that ex parte communication with a judge is about to take place, explain the nature of the communication, and where possible, give opposing counsel an opportunity to appear. When the opposing counsel or party cannot be reached or cannot appear before the judge or hearing officer, it is mandatory that the attorney be open and honest, not only presenting her client’s concerns, but also any known counter-balancing information known to the attorney.
 
In Malmin, 126 Idaho 1024 (Idaho 1995), at a custody hearing, opposing counsel and party did not appear because the parties had tentatively reached an oral settlement agreement. The attorney failed to inform the magistrate of the settlement negotiations. She was privately reprimanded. The Supreme Court of Connecticut upheld the reprimand of an associate who failed to speak up when a partner of the law firm where he worked misrepresented a conversation the associate had with out-of-state counsel in a multi-state custody dispute. Daniels v. Alander, 268 Conn. 320 (Conn. 2004).

COMPLIANCE WITH COURT ORDERS
 
At all times, it is important to show respect for the judicial system and to comply with all of its rules and court orders. Judges have inherent jurisdiction to make findings of contempt for failure to comply with court orders. Upon a finding of contempt, the judge can impose various sanctions such as refusal to permit the introduction of evidence or payment of opposing counsel’s legal fees. When a judge finds that failure to comply is so egregious that it interferes with prompt, efficient resolution of a matter, the judge may refer the matter to the local disciplinary committee for review.
 
In Colorado, an attorney was disbarred because he failed to forward to his clients written discovery, failed to respond to the discovery, failed to respond to a motion to compel, failed to timely respond to a trial court order compelling responses to the discovery, and failed to meet a trial court-ordered deadline for the filing of responses to the discovery. People v. Poll, 2003 Colo. Discipl. LEXIS 17 (Colorado Supreme Court Presiding Disciplinary Judge Appellate Discipline Commission 2003).
 
An attorney who arrived over an hour late without his client for a settlement conference and was unprepared to go forward, causing out-of-town opposing parties to miss their flight home, was sanctioned by the court. When he failed to explain his actions, failed to respond to a show cause order, and failed to pay costs for opposing parties’ attendance at the conference, the court found the attorney to be in contempt. Further, under California local rules, S.D. Cal. CivLR 83.5, the matter was reported to the California Bar Association, Leads Club, Inc. v. Peterson, 2008 U.S. Dist. LEXIS 4382 (D. Cal. 2008).