Honor in Battle: the Conflict Between Candor and Zealous Advocacy
| Publication year | 2001 |
| Pages | 16-26 |
| Citation | Vol. 70 No. 9 Pg. 16-26 |
70 J. Kan. Bar Assn. 9, 16-26 (2001). HONOR IN BATTLE: The Conflict between Candor and Zealous Advocacy
70 J. Kan. Bar Ass'n, October 2001, 16-26 (2001)
I. Overview - Zeal vs. Candor
Lawyers, as fiduciaries and surrogates for the clients they represent, owe various duties to their clients. Lawyers must be loyal,[1] and must counsel their clients wisely - taking into account moral, economic, social and political factors which may be applicable to the clients' individual situations.[2] Lawyers are granted a special franchise: to appear in court on behalf of clients, and to advocate their interests, claims, defenses, and grievances before the courts of the state and the nation. No other profession is granted that special privilege.
But privileges carry obligations. Under all circumstances, a lawyer must be honest. Deception and fraud cannot be tolerated at any level in the legal profession.[3] Moreover, lawyers as advocates have specific duties to represent clients with competence - to have and use the legal knowledge, skill, thoroughness and preparation reasonably necessary to carry out the representation.[4]
A. Kansas Rules of Professional Conduct
The Preamble to the Kansas Rules of Professional Conduct states that:
The legal profession's relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves.[5]
B. Model Code and Canons of Professional Ethics
The duty of candor is not a new concept developed in the Model Rules. The ABA Model Code, with its Canons of Professional Ethics, is the predecessor to the Model rules. This Code and its Canons (which generally applied in the ABA until 1969, and many of which are now incorporated into the Model Rules, including Rule 3.3),[6] required candor. Canon 8 stated that a lawyer "is bound to give a candid opinion of the merits and probable result of pending or contemplated litigation."[7] Canon 15 defined the boundaries to which a lawyer may go in supporting a client's cause:
The office of attorney does not permit, much less does it demand of him for any client, violation of the law or any manner of fraud or chicane.
C. Lawyer's Creed of Professionalism
The Lawyer's Creed of Professionalism, an aspirational document adopted by the American Bar Association and by many local bar associations, also counsels candor.[8] For example, Tenet 2 of Rule B of the Creed promises that "I will not knowingly make statements of fact or of law that are untrue." As to the lawyer's dealings with the Court, Tenet 11 of Rule C of the Creed states: "I will at all times be candid with the court."
D. The Tension Between Candor and Zeal
The current ethics rule of signal importance to trial lawyers (and probably to lawyers in all areas of practice) is that rule which requires the lawyer to represent a client with "diligence."[9] The Comments to Rule 1.3 are illuminating: they explain the duty of diligence to include the following as
A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf.[10]
Thus, the lawyer must act with "commitment," "dedication," and "zeal in advocacy." The advocate "should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor."[11]
Perhaps in contrast to this duty to act with commitment, dedication and zeal - this mandate to take "whatever lawful and ethical measures are required" - is the lawyer's duty to the public and to the profession to act ethically, professionally and responsibly. One of the aspects of this latter duty is the requirement of candor. Various rules of ethics require the lawyer - even while advocating strenuously for the client - to speak and write with candor. Lawyers cannot knowingly make false statements of material fact or law to a tribunal, or fail to disclose material facts or controlling legal authority.[12] Lawyers cannot offer evidence known to be false, and they must take reasonable remedial measures if they later learn the falsity of evidence they have offered.[13]
The lawyer must be a zealous advocate. But the lawyer must also maintain candor. The resolution of the apparent conflict between these duties is not always easy, and the conflict arises in any number of ways during the investigation of claims, the filing of suit, the pursuit of discovery, the lawyer's submission of fee statements, and in mediation and arbitration. The purpose of this article is to explore the conflict in the context of these activities.
II. Investigation - Contacts with witness-employees
A. Do not contact current employees
During the preliminary stages of investigating a potential lawsuit, a lawyer must thoroughly explore his or her client's position by seeking out information from persons with knowledge of the matter at issue.[14] However, in conducting the investigation as a zealous advocate, the lawyer must exercise caution to avoid overstepping the boundaries of appropriate communications with others, regardless of whether the person with whom the lawyer is speaking is represented by counsel.
The rules regarding a lawyer's communications with a person other than the lawyer's client vary depending on whether the person is represented by counsel. When a lawyer acting on behalf of a client knows that a person is represented by counsel in a matter,[15] the lawyer is prohibited, in most circumstances, from communicating with the represented person about the matter at issue, and the lawyer must direct all desired communications to or through the person's counsel. Rule 4.2 requires that in representing a client, a lawyer "shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter," unless the lawyer has the consent of the other lawyer or is so authorized by law. This Rule does not prohibit all communications with a represented party; conversations concerning matters outside of the lawyer's representation of his or her client are permissible, albeit, perhaps inadvisable because of the possible appearance of impropriety.
Lawyers may wish to contact employees of represented corporations and organizations, in an attempt to learn facts, to gain inside information, or even to drive a wedge between the organization and its employees.[16] However, lawyers must exercise particular caution in dealing with representatives and employees of organizations involved in litigation or otherwise represented by counsel "in the matter." Rule 4.2 prohibits communications by a lawyer representing a person involved in a matter adverse to a represented organization from having communications (1) with employees having managerial responsibility on behalf of the organization, (2) with any other person whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability, and (3) with any person whose statement may constitute an admission on the part of the organization.[17]
This rule was recently confirmed by the Kansas federal court in Holdren v. General Motors Corporation.[18] There, the court held that plaintiff's counsel could not contact current employees of the defendant and that, in addition, he could not circumvent the rules by directing his client to do so.[19]
B. Consent by counsel to contacting employee-clients
If an agent or employee of an organization is represented in a matter by his or her own counsel, consent by that counsel to a communication will be sufficient for purposes of the Rule.[20] Under such circumstances, a lawyer is obligated to be forthright and honest, not concealing the lawyer's underlying loyalty to his or her client.[21]
C. Former employees - Kansas
In 1995, the ABA Committee on Ethics and Professional Responsibility extended Model Rule 4.2 to cover any "person, whether or not a party to a formal adjudicative proceeding ... who is represented by counsel concerning the matter to which the communication relates." The Committee opines that the Rule does "not prohibit contacts with former officers and employees of a represented corporation, even if they were in one of the categories with which communication was prohibited while they were employed."[22] This change by the Model Rules Committee of the ABA was not adopted by the Kansas Supreme Court. However, the change was recommended by the Kansas Bar Association to the Kansas Supreme Court in February, 1999, and the matter is still under advisement before that Court.
The Kansas Bar Ethics Advisory Committee has opined that ex parte contacts may be made with former employees of a represented corporation except when the former employee's act or omission in connection with the fact situation may be imputed to the corporation for civil or criminal liability, or when the information sought from the former employee is covered by the corporation's attorney-client privilege.[23]
One federal judge in Kansas has held, however, that contact with former employees is permitted. Contrary to the specific Kansas...
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