Candor with the court essential
It goes without saying that those same rules that require attorneys to be respectful and truthful in their interactions with opposing and third parties should also apply to their conduct toward the court.
It is often an expectation and common misconception of the client that the attorney should make any argument necessary to prevail in court. However, the attorney’s duty as an advocate for the client is to make persuasive arguments based in fact and law. Therefore, the attorney should not knowingly make a false statement of fact or law to the court or fail to correct a false statement of material fact or law previously made to the court by the attorney.
For example, if the attorney learns that the client lied during the testimony or if the attorney discovers that the law or evidence presented to the court is invalid or false, it is the attorney’s duty to take reasonable remedial measures. First, the attorney should discuss the issue with the client. The attorney should explain to the client the attorney’s duty of candor to the court and ask the client to cooperate in correcting the misrepresentation. If the client refuses, the attorney may seek to withdraw from further representation of the client. If the withdrawal is not permitted or would not remedy the situation, then disclosing the misrepresentation to the court might in fact be necessary.
Similarly, the attorney should not knowingly offer evidence that the attorney knows to be false. An attorney who knows that a client plans to give false testimony or offer false evidence should attempt to convince the client to refrain from doing so. If the client insists and the attorney chooses to continue to represent the client, the attorney must refuse to assist the client in offering false evidence or testimony. Sometimes, this means that the attorney can only offer a partial testimony from the client and, at other times, the attorney might be required to disclose the client’s criminal or fraudulent behavior to the court.
This disclosure to the court can be detrimental to the client’s case and even result in the client being prosecuted for perjury. Further, allowing the attorney to refrain from presenting evidence that the attorney reasonably believes to be false may impair the effectiveness of representation. For that reason, in criminal cases, the attorney can only refuse to offer testimony the attorney knows to be false. But, ultimately, an attorney cannot be complicit in deceiving the court and obstructing justice. Additionally, if the client understands that criminal or fraudulent behavior must be disclosed to the court, the client might be deterred from engaging in such conduct.
It is well established that the client has the right to always expect the attorney’s argument on their behalf to be persuasive. The opposite party has the right and duty to present their own interpretation of the applicable law and facts. However, the attorney should not fail to disclose to the court the controlling legal authority known to the attorney to be directly adverse to their client’s position when not disclosed by the opposing counsel. A first impression of this rule is that it appears to contradict the concept of an adversarial process. However, the rationale behind it goes beyond the notion of winning. This special duty is intended to preserve the integrity of the judicial process.
In summary, the attorney’s duty of candor to the court means that the attorney must not allow the court to be misled by false statements of law or fact. Otherwise, justice cannot and will not be served.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.