Imagine, if you will, a client that is a large entity. It has been factually documented that the chief executive of the client entity has publicly lied over 10,000 times since he became chief executive two years ago. Your argument on the key issue that you presented as factual is discovered to be false or, at a minimum, “appears to have been contrived.” Regardless, the chief executive insists you continue the representation. What is your ethical responsibility?
ABA Model Rule 3.3 “Candor Toward the Tribunal” subparagraph(a)(3) is most directly on point:
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Of particular importance is “that the lawyer knows to be false.” “Knows” is defined in the Terminology portion of the Model Rules, Rule 1.0(f). It “denotes actual knowledge of the fact in question.” Knowledge “may be inferred from circumstances.” The definition of “knows” is distinct from the definition of “reasonably should know.” That is defined in Rule 1.0(j) saying that “a lawyer of reasonable prudence and competence would ascertain the matter in question.”
This is an important distinction that arises in other provisions of the Model Rules. For example, in Rule 1.2(d): “A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent….”
And Rule 8.4 (b) and (c):
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
The failure of the client to be truthful with the lawyer is grounds for the lawyer to withdraw from the representation. Rule 1.16(b)(3), (4), and (5):
[A] lawyer may withdraw from representing a client if:
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
ABA Formal Ethics Opinion 92-366, while perhaps most focused upon “noisy withdrawal,” concludes that: “A lawyer who knows or with reason believes that her services or work product are being used or are intended to be used by a client to perpetrate a fraud must withdraw from further representation of the client….”
See also, Formal Opinion 87-353, Lawyer’s Responsibility with Relation to Client Perjury.
Recently, the U.S. Supreme Court held, in Department of Commerce v. New York, that the information provided from the Department of Commerce to the courts did not satisfy the obligations of the Administrative Procedures Act to justify adding a citizenship question to the census. The court said the explanation was “contrived” to cover-up the actual actions of the Secretary of Commerce. In other words, the client lied.
And the Department of Justice lawyers are confronted with how to perform when a client lies. Further, the uber-client, the ultimate superior of the Executive Branch, contradicted representations made by the Department of Justice lawyers to the various courts.
In accordance with the guidance of the Model Rules discussed above, the Department of Justice lawyers who were handling the case sought to withdraw from the representation.
However, because this is the Department of Justice, the withdrawal is only by those lawyers who had been handling the census question cases. DOJ seeks to replace the original team of lawyers with a different team from a different division. Judges presiding over the various census question cases have been hesitant.
Under the Model Rules it does not appear that some lawyers of a firm who are withdrawing because of the misrepresentations to a tribunal prompted by disingenuous information provided by the client can be substituted by other members of a firm. In the Terminology section of the Model Rules, Rule 1.01(c) does not include government entities in the definition of “firm.”
At least one district court case is requiring the DOJ lawyers seeking to withdraw to comply with a local rule in stating the reasons for withdrawal. This is consistent with Model Rule 1.16(c): “A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”
However, the ethics question remains: What is the extent of the obligations of both the old and new DOJ lawyers to reveal the client falsehoods – or pretextual contrivances – to the various courts involved?
There are disciplinary cases where a lawyer has been sanctioned for being an ostrich – sticking one’s head in the sand so as to ignore client falsehoods or schemes (see, e.g., In the Matter of Tony L. Axam; Nebraska v. Wintroube and Albrecht v. Justices of Oregon Supreme Court).
The scope of a government lawyer’s obligations to reveal client falsehoods or not ignore client information or activities is still an open question. But, it is reasonable to note that pressure is mounting from the government to increase private lawyers' obligation of due diligence in representation of clients as to financial transactions.
Some might argue that government lawyers have a professional obligation to ensure that the facts and arguments being presented are truthful and not pretextual contrivances. “Inquiring minds want to know.”
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