The Truth, the Whole Truth, and Nothing but the Truth
The attorney’s ethical duties to their clients are vast, but the attorney’s duties of professional and ethical behavior extend also to others involved in the legal process.
When representing a client, an attorney should not knowingly make a false statement about the applicable law or an important fact of the case to a third person. In other words, the attorneys should be truthful in statements to others when acting on behalf of their client. Of course, the attorney is not required to do the work for the opposing party and provide them with relevant facts but, when the attorney speaks, they should always speak the truth.
Misleading or incomplete statements as well as omissions are also considered misrepresentations, while estimates and statements regarding the party’s intentions made during negotiations are generally not considered material facts under this rule. It is noteworthy though that interpretation legitimizes dishonest negotiation tactics or even lies. As an example, the attorney cannot lie about the limits of the defendant’s insurance policy but can “bluff” when disclosing the client’s bottom line in negotiations. Failing to disclose the death of the client when accepting a settlement would constitute an impermissible omission.
In extreme cases, the attorney is required to disclose a material fact to a third person in order to avoid assisting a client in committing a crime or a fraud by misrepresentation. However, this obligation is severely restricted by the attorney’s duty of confidentiality. Typically, terminating the attorney-client relationship and withdrawing from the representation can allow the attorney to avoid assisting the client in committing such crime or fraud.
The attorney’s ethical duties to third parties cover not only the attorney’s words but also their conduct. While the attorney’s commitment to a client should take precedence over the interests of third persons, the attorney should not use methods intended solely to embarrass, delay, or burden third persons. For example, it is often part of the attorney’s job to discredit a witness during a deposition or cross-examination. However, unwarrantedly invading one’s privacy or humiliating a person with irrelevant personal matters is against the rules. Similarly, while giving proper notice of a criminal or civil process is often required, using a threat of such proceedings to pressure or force a party in a civil case is prohibited as it implies that the legal system can be manipulated.
Along the same lines, when an attorney receives a document, email, or even a text message related to the representation of the attorney’s client and knows or reasonably should know that it was mistakenly sent, the attorney should promptly notify the sender. In certain situations, the law might even require the attorney to return the document to the sender. In some States, the attorney is prohibited from reading or using the inadvertently received material and is required to follow the sender’s instructions regarding the disposition of the said material. And while the law provides some level of protection to the unfortunate sender, mistakenly sent and read information cannot be unread and might also impact the information’s privileged status. Like in life, think twice before you hit “send.”
While the representation of a client often requires a creative and finessed approach, it should not be done at the expense of the truth, the whole truth, and nothing but the truth.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.