Resolving Ethics Questions in Good Faith

• Author: Bruce A. Green
• Pages: 39-43

Published in Litigation, Volume 46, Number 2, Winter 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 39

Resolving

Ethics Questions

in Good Faith

BRUCE A. GREEN

The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

In litigation, must I reveal something that the judge would prob-

ably want to know but that will hurt my client? Professional con-

duct rules, judicial decisions, and bar association ethics opinions

helpfully tell us, “Sometimes yes, sometimes no.”

Yes, you have to disclose when you learn that a prospective

juror lied in voir dire or that a juror is blogging about the ongoing

trial. No, if you represent a criminal defendant, you do not have

to volunteer to the judge that your client violated bail conditions

or, at sentencing, that your client has prior convictions of which

the judge is unaware. Yes, you must tell the judge when you learn

that your client, the plaintiff in a civil case, is deceased. No, you

need not disclose decisions from the neighboring jurisdiction

that are directly adverse to your legal position.

Courts hold trial lawyers to a duty of good faith and candor to

the tribunal. But the scope of this duty is not always self-evident.

In situations where this duty is in tension with the lawyer’s fidu-

ciary duties to the client, lawyers may face hard questions of pro-

fessional conduct. Lawyers do not always answer these questions

correctly from the courts’ after-the-fact perspective. But lawyers

can be expected to make a good-faith effort to get the right answer.

What does that entail? Consider the following scenario.

While representing a client in litigation, you learn information,

unknown to the other side, that might require the trial judge’s

recusal from the case. For example, you discover that the judge

has a significant financial interest in the outcome of the lawsuit

or a significant personal relationship with a party or lawyer in

the case. And suppose further that the judge has not disclosed

the relevant information in the course of the proceedings and,

as far as you can tell, has not considered whether to withdraw.

Perhaps the judge knows the facts but mistakenly overlooks their

significance. Must you alert the judge and opposing counsel?

The answer may be easier if you are unhappy with the judge’s

rulings or expect the judge to disfavor your client in later pro-

ceedings, so that you would rather another judge were assigned

to the case. Then there is strategic value to filing a recusal mo-

tion or, at the very least, to disclosing the problem and inviting

the judge to consider whether to take the initiative to withdraw.

But the answer is harder if the judge is a good one, or a very good

one, from your client’s perspective.

The Al-Nashiri Case

This question was recently lurking in a criminal case arising out

of the prosecution of an alleged terrorist. See In re Al-Nashiri,

921 F.3d 224 (D.C. Cir. 2019). The government captured Abd Al-

Rahim Hussein Muhammed Al-Nashiri in 2002 and has been

holding him in Guantánamo, where he awaits trial on capital

charges for allegedly participating in al Qaeda’s bombing of the

U.S.S. Cole, which killed 17 American sailors. Under a 2009 law,

Al-Nashiri is to be tried before a military commission.