Vol. 34, No. 6, 46. Ethically Speaking.

• Author: by John M. Burman

Wyoming Bar Journal

2011.

Vol. 34, No. 6, 46.

Ethically Speaking

Wyoming LawyerIssue: December, 2011Ethically Speakingby John M. BurmanCarl M. Williams Professor of Law and Ethics University of Wyoming College of Law

Lawyers' Duties to Tribunals:

Part II - Candor

In August, this column contained Part I of this series, "Meritorious Claims and Defenses."(fn1) Satisfying that obligation does not, however, exhaust a lawyer's duties to tribunals. Perhaps the most important obligations, which even overrides a lawyer's duties to his or her client, is the duty of candor. That duty has a number of aspects, each of which is discussed in this column.

The General Framework of the Rules

The Rules of Professional Conduct ("the Rules") are "rules of reason."(fn2) "They should," therefore, "be interpreted with reference to the purposes of legal representation and of the law itself"(fn3) One of the purposes of the law is to encourage respect for the legal system. One way to do that is to prohibit lawyers from engaging "in conduct intended to disrupt a tribunal."(fn4)

Not surprisingly, the practice of law generates considerable ethical conundrums. Those issues tend to arise because of conflicts in lawyers' duties. As the Rules note, "[v]irtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living."(fn5)

Rather than trying to anticipate and provide an answer to every such issue, the Rules provide a "framework" to analyze ethical issues.(fn6)

The "framework" provided by the Rules includes a hierarchy of duties, meaning that many issues may be resolved by applying that hierarchy to the facts. The hierarchy has three levels. First, a lawyer's duties to tribunals are the most important. Second come a lawyer's duties to the lawyer's clients. Finally, a lawyer has duties to third parties, such as opposing counsel and other third parties. The Rules do not make that hierarchy express. Rather, it is implicit in the structure of the Rules. In particular, Rule 3.3, "Candor Toward the Tribunal," makes clear the primacy of a lawyer's duties to tribunals.

The Ethical Hierarchy

The best indicator of the hierarchy of a lawyer's duties is to examine the Rules' treatment of the duty of confidentiality each lawyer owes to each client. That duty is contained in Rule 1.6, "Confidentiality of information." The Rule is simple. "A lawyer shall not reveal confidential information(fn7) relating to the representation of a client unless. . . "(fn8) Generally, that duty takes precedence over duties to others. For example, although a lawyer has a duty to report certain lawyer misconduct to the Board of Professional Responsibility, that duty "does not require disclosure of information otherwise protected by Rule 1.6 . . . "(fn9) When the issue involves a tribunal,,(fn10) however, the duty of confidentiality is subordinate: "The duties stated in paragraphs (a) and (b) [candor to the tribunal] . . . apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."(fn11) Given the mandate to disclose information "protected by Rule 1.6," to fulfill a lawyer's duty of candor to a tribunal, it is clear that the duty to the tribunal is at the top of the hierarchy, and the duties to the client are in second place, ahead of duties to other persons or entities.

Duties to Tribunals

Having determined that a lawyer's duties to tribunals have priority over all other duties only begins the inquiry. The question then becomes what duties does a lawyer owe to tribunals? The answer is several, each of which is discussed in more detail below. The duties are: (1) not to knowingly(fn12) make misrepresentations of fact or law; (2) to correct certain misrepresentations of fact or law; (3) to disclose certain adverse legal authority known to the lawyer; (4) not to knowingly offer false evidence; (5) to take remedial measures if a lawyer learns that evidence previously offered is false; (5) to take remedial measures if the lawyer knows certain persons are, have, or intend to act criminally or fraudulently; and (6) in an ex parte proceeding, inform the court of all material facts. All the foregoing duties are contained in Rule 3.3, a Rule that "sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process."(fn13)

Candor Towara the Tribunal

The first duty regulates lawyers' statements to a tribunal. A lawyer shall not "knowingly . . . make a false statement of fact or law to a tribunal."(fn14) The duty is similar to the obligation of truthfulness that a lawyer owes to all third parties: "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person . . . ."'(fn5) The Rule that applies to tribunals, Rule 3.3, is different from that which applies to all others, in two important ways.

First, Rule 3.3 does not contain the phrase "[i]n the course of representing a client" as it doesn't need to. It doesn't need to because a lawyer who is appearing before a tribunal is either representing a client,(fn16) or, at a minimum, is acting as an "officer of the court."(fn17) In either capacity, the lawyer may not make a misrepresentation "of fact or law" to the tribunal. In short, while it is difficult to become a lawyer, once a person is a lawyer, he or she is always a lawyer, and the ethical standards that apply to that person apply all the time, regardless of whether the lawyer is acting "professionally" or "personally."(fn18)

Second, Rule 3.3 prohibits a lawyer from making any misrepresentation of fact to a tribunal. By contrast, Rule 4.1 makes false statements of "material fact" unethical when the statements are made to someone other than a tribunal. While "material" is not defined in the Rules, the Wyoming Supreme Court has addressed the issue. "Materiality of a fact depends upon it having some legal significance . . . "(fn19) It appears, therefore, that while a lawyer may misrepresent a non-material fact to anyone other than a tribunal, the lawyer may not misrepresent any fact to a tribunal, regardless of the materiality of the fact. The commentary to Rule 4.1 explains that certain statements by a lawyer to a non-tribunal are not material. Under "generally accepted conventions" of negotiating with others, "certain types of statements ordinarily are not taken as statements of material fact."(fn20) Such statements include: "[e]stimates of price or value placed on the subject of a transaction and a party's intentions as to an acceptable settlement of a claim . . . ."(fn21) A lawyer may, in other words, ethically negotiate without disclosing the client's ultimate position. For example, assume that a client tells his or her lawyer, "I want to sell the property for $100,000.00, but I will accept $90,000.00." The lawyer may then call the potential buyer, or the potential buyer's lawyer, if he or she has one, and say, "My client will sell the property for $1,000,000.00, and not a penny less." That statement is not really true, but it is not a "material" misrepresentation under Rule...