What would you do if you were hard at work in your office, your managing partner walked in and told you that opposing counsel just filed an ex-parte motion for a temporary restraining order and preliminary injunction against your firm’s biggest client, and he wanted you to have an opposition brief prepared and ready to file first thing tomorrow morning? The caveat, however, is that your boss tells you to not only refute all the allegations but also to “be creative” and “invent” facts that would defeat the motion. When you question his instructions, he says, “Look, the facts of this case are terrible against us, but we can’t afford to lose this client. Just get us past this TRO.”
After wiping the sweat from your brow and taking a few deep breaths, it’s time to weigh your options:
- you draft the opposition brief with invented facts that, if true, would defeat the opposing party’s motion; or
- you refuse to follow your boss’s instructions and advise him that doing so could result in disciplinary action against both you and him.
Option 1 may defeat the motion but, if discovered by the court, will most likely result in professional discipline by the bar, as well as permanent damage to your reputation. Option 2 keeps your license to practice secure but may leave you with a license and no job. Time’s ticking—what do you do?
As an ethical lawyer, you choose Option 2. As I’m sure you recall from law school, Rule 5.2(a) of the ABA Model Rules of Professional Conduct provides that, “A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Further, the Restatement of Law Governing Lawyers, § 12(1) explains that “[f]or purposes of professional discipline, a lawyer must conform to the requirements of an applicable lawyer code even if the lawyer acted at the direction of another lawyer or other person.” If you were to follow the managing partner’s instructions, then you will have knowingly violated the Model Rules of Professional Conduct. No amount of whining or hiding behind your boss’s demands will protect you. Not only did you make a false statement of fact or law to the court and offer evidence that you knew to be false in direct violation of Model Rule 3.3, but you also did so knowingly and with the intent to do so. Even those courts that have considered an associate’s reliance on their superior’s orders as a potentially viable defense do so only when reasonable, and it is never reasonable to believe that a lawyer may mislead the court.
The answer is clear, and now it’s time to let your boss know where you stand. When you tell him you cannot file the opposition brief that he wants, he storms out of your office screaming, “Fine! I’ll do it myself!” The next day you see that the managing partner has filed a response to the TRO, setting forth untruthful facts. Once again, you find yourself bound by the Rules of Professional Conduct. This time, you must report your boss to the proper disciplinary authority, pursuant to Model Rule 8.3.
Model Rule 8.3 states, “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” You know that your boss filed a brief with the court that directly violated Model Rule 3.3. Thus, on the heels of directly disobeying your boss’s instructions, you now must report him for professional misconduct.
Some may see this as a necessary evil, but, in reality, it is a defining personal and professional moment. You’ve been asked to lie and to compromise your ethics, morals, and honor in the service of the business. This should draw your ire—internally, of course; you should remain professional toward everyone involved in such a situation. But consider this the first inch of a very slippery slope. If you can recognize these moments early in your career, you will spot them from a mile away and always react ethically . . . hypothetically speaking, of course. Nobody ever said doing the right thing (or being a lawyer) was easy.