What do you do when the client lies on the stand? May you represent the sister of your former client in a suit against that client?
Law students address these questions during law school. It has been our experience however as young associates that these are not ethical issues we often encounter. Instead, we confront difficult opposing counsel, clients who are less than forthcoming with “bad” facts, and pressure associated with upcoming deadlines.
Discovery: An Illustration of Ethical Issues Facing New Lawyers
Discovery is not just the territory where new lawyers cut their teeth, it is also fertile ground for ethical issues. Responding to discovery, collecting facts, and meeting and conferring with opposing counsel implicate important ethical decisions. Here are some solutions that uphold the standards of professional conduct most often in the following contexts:
1. Duty of Competency: Meet Your Deadlines
Under the Discovery Act, unless discovery responses consist only of objections, a client must verify the responses and declare, under oath, that the facts and information contained therein are truthful and complete to the best of his or her knowledge. In order for a client to sign such a verification, he or she must be given the opportunity to review the discovery responses, ask questions, and make changes.
Good time management is key. A draft of the responses should be completed at least a week in advance of the statutory deadline. Set a meeting with the client to discuss the draft responses with enough time to incorporate any changes. Know the client’s schedule and be sure to get the signed verification before the client becomes unavailable.
Remember, the statutory response deadlines are just that – deadlines. There is no need to wait the full 30 days to respond.
2. Duty to Your Keep Client Informed: Get the Whole Truth from the Client
Discovery responses must be truthful, non-evasive, and must provide the information requested. Eliciting relevant facts from the client may be a challenge, especially when the client believes certain facts are “damaging” or too personal to reveal.
Effective communication will prove invaluable in preparing accurate and truthful responses. Listen to the client's concerns carefully and overcome fears by explaining the discovery process and specific case plan. Giving the client insight into the long term goals and “big picture” of a case will ease anxieties about smaller details. Learn to manage the client's expectations about the legal process, especially if the client is reluctant to participate or has concerns. Be realistic about the pros and cons of case strategies and possible outcomes.
Imparting legal knowledge in a confident yet compassionate manner demonstrates both your legal talent and your understanding of the client's unique situation.
3. Duty of Candor: Conferring with Difficult Opposing Counsel
The Discovery Act requires that parties meet and confer to attempt to resolve issues informally before filing discovery motions. What happens when opposing counsel repudiates an agreement or misrepresents something said during a meet and confer call? Depending on the severity of the misrepresentation, or whether the agreement was memorialized in a court order, there may be ethical implications.
You, the attorney on the receiving end of this behavior, should take certain actions to prevent this behavior from happening in the first place. Remember that you “get what you give.” Discovery is reciprocal. If you respond to discovery with unfounded objections or evasive responses, you may get the same sort of responses from opposing counsel. Instead, respond fully and completely, and grant time extensions when this will not prejudice the client. Get everything in writing. If you initially meet and confer in person or by phone, write a confirming email or letter to ensure that any agreements are clearly recorded.
Ethical issues may arise at any time during a case and at any point in an attorney’s career. Because no legal task is too mundane to be exempt from a potential ethical concern, focusing your efforts on applying time management skills, communicating effectively, and better managing clients’ expectations will assist you in meeting deadlines and preparing your cases thoroughly and in a professional manner.