Testimony of Professor Lisa G. Lerman and Professor Philip G. Schrag - Center for Professional Responsibility

ABA Commission on Evaluation of the Rules of Professional Conduct

Testimony of
Professor Lisa G. Lerman, Catholic University School of Law
Professor Philip G. Schrag, Georgetown University Law Center

June 4, 1999

One of us teaches professional responsibility, and the other teaches civil procedure. We would like to suggest that the ABA Ethics 2000 Commission review the standard in Section 3.4 (d) of the Model Rules governing compliance with pretrial discovery and the definition of "fraudulent" which is incorporated by reference in Rule 3.3.

The current Model Rules at least arguably permit attorneys to withhold critical facts in litigation. The rules reflect and perpetuate a pervasive confusion in the legal profession: Is deliberate deceptive behavior prohibited only if it is accomplished by an overt action or false statement, or is deliberately deceptive behavior also prohibited when it is accomplished by withholding information? To reduce gamesmanship in the practice of law and to restore public confidence in the honesty of lawyers, the rules should make clear that deliberate deception is prohibited regardless of whether it is accomplished by act or by omission.

Rule 3.4 (d) states that a lawyer shall not "fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party." The wording of this rule could be read to permit a lawyer to interpret an opposing party's discovery request in a crabbed or restrictive way, thus justifying an undisclosed decision to withhold relevant information. Two recent examples of such withholding are

-- a law firm's failure to disclose relevant documentation in its possession on the potential harmful effects of theophylline, when a request sought the manufacturer's documents regarding harm that could be caused by its product Somophyllin (of which theophylline was the only active ingredient). This conduct was sanctioned on appeal in the case of Washington State Physicians Insurance Exchange v. Fisons Corporation, 122 Wash. 2d 299, 858 P. 2d 1054 (1993), but fourteen eminent experts had testified at the trial level that the conduct was not sanctionable, and several of them opined that withholding the documents was ethically required. The dispute is described in a lengthy article about the case by Stuart Taylor, Sleazy in Seattle, The American Lawyer, April, 1994; and

-- the withholding, by President Clinton's lawyers, of White House files on a witness in the Paula Jones case, on the (unstated) ground that the document request had been addressed to the President, seeking documents in his custody or control, rather than to the "White House." A sanctions motion in connection with this withholding of documents was mooted by the settlement of the case.

Rule 3.4 should be amended to require lawyers to interpret each discovery request in good faith and to disclose in detail any interpretation of a discovery request that may be more narrow or limiting than an ordinary person's interpretation of that request.

Similarly, the definition of "fraudulent" presently "denotes conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." This definition is grammatically ambiguous: are there exceptions (following the words "and not merely") for both (a) "negligent misrepresentation" and (b) "failure to apprise another (whether negligent or intentional)"? Or does the word "negligent" modify both phrases that follow it, narrowing the exceptions to (a) "negligent misrepresentation" and (b) " negligent failure to apprise another"?

If the former interpretation applies, it would appear to exempt all misrepresentation by omission, even deliberate omission. For example, consider the impact of this definition on Rule 3.3 (a) (2), which requires a lawyer to disclose material facts to a tribunal when necessary to avoid assisting a fraudulent act by a client. Does such a fraudulent act occur when a lawyer knows that a client is deliberately omitting information from testimony for the purpose of deceiving a tribunal? For example, suppose the following exchange took place in a trial or deposition.

Q: Was there a sexual relationship with this particular woman?

A. There is no sexual relationship.

Suppose further that the lawyer knew that his client's answer was arguably literally true at the time it was uttered but that the client was intentionally misleading the tribunal by failing to disclose a material fact.

Under the present Model Rule 3.3(a)(2), the lawyer might ask whether disclosure of the omitted fact was necessary to "avoid assisting a criminal or fraudulent act by a client." In considering whether the client's conduct was "fraudulent", the lawyer might refer to the definition of the term in the rules to include "conduct having a purpose to deceive and not merely negligent misrepresentation or failure to apprise another of relevant information." The definition might be read to say that nondisclosure is not fraudulent regardless of the client's intent.

The ambiguity in the definition of fraudulent in the Model Rules could be corrected simply by

ending the sentence after the word "deceive."

In making this recommendation, we are aware that in United States v. Bronston, 409 U.S. 352 (1973), the Supreme Court interpreted the federal perjury law not to apply to literally true statements that create a false impression. However, nothing prevents rules of professional ethics from holding lawyers and their clients to higher standards of truth-telling than the federal perjury law, which prohibits only outright lies.

Thank you for your consideration of these views.