Ethical Duties During Litigation

• Publication year: 2003
• Pages: 53
• Citation: Vol. 32 No. 10 Pg. 53

32 Colo.Law. 53 Colorado Lawyer 2003.

2003, October, Pg. 53. Ethical Duties During Litigation

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53

Vol. 32, No. 10, Pg. 53

The Colorado Lawyer
October 2003
Vol. 32, No. 10 [Page 53]

Ethics for Colorado Lawyers

Ethical Duties During Litigation
by Nancy L. Cohen

Nancy L. Cohen is Chief Deputy Regulation Counsel with the Colorado Supreme Court Office of Attorney Regulation Counsel Prior to accepting this position, she was in private practice for seventeen years and practiced in the areas of lawyer discipline, employment disputes, and commercial litigation She served as Chairperson of the CBA Ethics Committee from 1990 to 1991 and has been a member since 1984. She also has participated on numerous other committees that study ethical rules. An author and frequent lecturer on ethical and employment issues, she was elected Secretary of the National Organization of Bar Counsel in 2003

Nancy L. Cohen

Ned Newbie is office sharing with Sally Solo and Lois A. Lone. Ma and Pa Client ("Ma & Pa") approach Ned regarding representation in a civil suit in which they are being sued by Universal Bank for inducing Universal to rely on false financial statements in giving Ma & Pa business loans. While Ned is interviewing Ma & Pa, he learns that the district attorney is investigating their conduct with respect to the loans and considering bringing criminal charges against Ma & Pa.

Ma & Pa state that they are interested in obtaining representation for anything related to the false financial statement. Ned, a new lawyer, thinks this case may be over his head and elects to speak to Sally Solo about it. Although she is already very busy with her practice and detests litigation, she is eager to get new paying clients with multiple serious matters and tells Ned that she would be grateful if he would refer Ma & Pa to her. Ned agrees, and sends Ma & Pa a letter explaining that he cannot represent them, but recommends they contact Sally. Ma & Pa are unsophisticated in matters of business (hence the legal trouble). They contact Sally, enter into a fee agreement with her, and she begins working on the case. She quickly realizes she will spend significant time in court for this representation, but thinks, "Oh well, a buck's a buck."

Misrepresentations by the Client or Lawyer

Ma & Pa testify that they obtained bank credit based on multiple false financial statements they submitted. Criminal proceedings also are brought against Ma & Pa. Sally is aware that if her clients admit to obtaining various forms of bank credit based on multiple false financial statements, it could result in a lengthier sentence for Ma & Pa.1 She advises them to acknowledge only one transaction. Ma & Pa are uncomfortable with this arrangement, but agree, hoping their sentence will be as short as possible. In the criminal proceeding before Judge Jane Justice, Ma & Pa testify to using one false financial statement to obtain money. During the sentencing phase of the trial, Sally affirms this representation. Ma & Pa do in fact get a shorter punishment, and Sally leaves feeling quite pleased with herself. She returns to the office and tells Ned of her success. Ned is appalled and greatly concerned about the ethical rules Sally just confessed to violating.

Ned looks up the Colorado Rules of Professional Conduct ("Colorado Rules" or "Colo.RPC") to determine which rules prohibited Sally's conduct. Ned also is concerned that he now has a duty to report Sally's ethical violations.2 Ned understands that every lawyer is responsible for knowing the rules,3 but doesn't know how to approach Sally about these issues.

Ned determines that by advising her clients to make misrepresentations to the court, Sally has violated Colo.RPC 1.2(d).4 The rule prohibits a lawyer from counseling a client to engage in, or assisting a client with, conduct that the lawyer knows is criminal or fraudulent.5 Although an attorney may discuss the legal consequences of any course of conduct,6 by advising her clients to testify falsely, Sally has run afoul of Colo.RPC 1.2(d).

In addition, Ned discovers that her conduct violated Colo.RPC 3.3,7 which prohibits an attorney from making a false statement of material fact or law to a tribunal, or from offering evidence the lawyer knows to be false. This rule provides that an attorney may refuse to offer evidence the attorney reasonably believes is false and that an attorney must disclose material facts to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.8 The attorney also must disclose to the tribunal the legal authority in the controlling jurisdiction that is adverse to the attorney's position if opposing counsel does not disclose the authority.9

The attorney has an affirmative duty to take remedial measures where an attorney offers evidence that is later determined to be false.10 This duty of candor continues through the entire proceeding and applies even if it requires disclosure of information protected by Colo.RPC 1.6 (Confidentiality of Information).11 Ned concludes that Sally's advice to her clients that they testify falsely violates the ethical rules. Sally also made a misrepresentation to the court by affirming her clients' position during the sentencing phase of the trial.

Ned believes that Sally's misrepresentation to the court also results in a violation of Colo.RPC 8.4(c).12 The rule prohibits an attorney from making misrepresentations and from engaging in other deceitful, dishonest, or fraudulent conduct.13 Sally engaged in dishonest conduct by participating in the misrepresentation to the court, so Ned decides he better confront Sally with his concerns.

After Ned lays out his concerns, Sally is skeptical that she has been anything but successful, and tells Ned that she doubts any attorney has ever been disciplined for this sort of thing, and believes this probably is not that big of a deal. In fact, Ned replies, the Colorado Supreme Court addressed a very similar situation in People v. Cardwell.14 In that case, Cardwell represented a client with two alcohol-related charges. While the first driving under the influence ("DUI") case was pending in Jefferson County, the client was arrested in Arapahoe County for another DUI charge. In the Jefferson County case, the client entered into a plea bargain to a driving while ability impaired ("DWAI") charge.

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