F12 WA3

An attorney’s duty of confidentiality holds an extremely important role in the type of representation a lawyer is capable of giving. Without clear assurances from the attorney that communication will be absolutely privileged, the client will be hesitant to divulge certain information needed for the attorney to provide an effective defense. The attorney-client relationship rests on a foundation of trust. This trust depends on the attorney keeping some information private, especially when the information is potentially damaging to the client. The struggle for many lawyers comes in balancing this oath of confidentiality with the duties concurrently owed to the court or tribunal.

These competing duties present the potential for a conflict of interests. Attorneys are first and foremost officers of the court, sharing in participation for the search for truth. Monroe H. Freedman, "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich.L. Rev. 1469 (1966). They may not knowingly misstate a material fact or law to a tribunal to which they are appearing. NYRPC 3.3(a)(1). Accordingly, the lawyer also may not present evidence that the lawyer knows is false. NYRPC 3.3(a)(4). A more problematic situation arises where the lawyer believes but does not know that the client intends to lie on the witness stand. The Rules of Professional Conduct require lawyers to take remedial measures to ensure that untrue testimony is not delivered to the court. NYRPC 3.3(a)(4). Where the lawyer has just a reasonable belief that evidence is false, he or she may exercise discretion in allowing the presentation of such evidence. NYRPC 3.3(a)(4). {Prof C: cite should be 3.3(c)}While the attorney should believe the words of the client, obvious falsehoods cannot be ignored. NYRPC 3.3(a)(4). Thus ethical challenges arise where the attorney must weigh the client’s interests with the ultimate quest for truth.

How an attorney discloses and explains to the client this relationship between confidentiality and the duty of candor towards the tribunal can make an enormous difference in the ultimate truthfulness of the client. The Simon interviews demonstrate two examples of techniques lawyers use in initially explaining these issues. In “Stan’s Meeting with Ms. Simon,” Stan begins by going through the general duty of confidentiality and explains a few of the exceptions. Regarding false evidence, Stan tells the client that if he becomes aware of the potential of the client using false evidence, he would first try to convince the client not to use the evidence before he had to “come up with a way of making sure that the court realized that that was false evidence.” Stan: 5:10-5:31. He later re-emphasizes that he cannot knowingly allow the client to use false testimony. Stan: 6:40-6:50. Stan stresses that truthful disclosure by the client would allow him to try to create a situation where she would still have a good hearing without using the false evidence. Stan: 5:40-6:08.

While Stan does explain his personal requirement to not allow false evidence to the court, there are a few omissions relating to his explanation of NYRPC 3.3. Stan properly informs Ms. Simon of his duties regarding evidence which he knows or comes to know is false, however he does not explain the discretion he possesses under the rules regarding information that he reasonably believes is false. The rules explicitly allow Stan to refuse to offer evidence that he reasonably believes is false. NYRPC 3.3(c). Furthermore, he does not explain that the court can infer his knowledge of falsity from the circumstances such that he could not ignore obvious falsehoods. This might have left Ms. Simon believing that as long as she did not explicitly reveal to Stan that her story was indeed false, her attorney would still be required to allow her to testify, despite his knowledge that the testimony rests on extremely tenuous grounds. Also, Stan does not explain his disclosure rights in situations where he is permitted, or even required, to seek withdrawal of the client’s representation from the court. Withdrawal is often permitted by lawyers where there is a disagreement with the client in which the client insists on conduct that criminal or fraudulent. NYRPC 1.16(b)(1). In seeking the tribunal’s permission to withdraw from representation, the attorney may reveal otherwise confidential information to the extent reasonably necessary to comply with the duty of candor. NYRPC 3.3 COMMENT [15]. Stan never states that he may have the right to reveal certain information in order to withdraw from the case.

Stan’s explanation of the rule and its impact is also not entirely comprehensible to the client. While Stan makes it clear that he cannot knowingly use false evidence in the tribunal, he does not fully explain the consequences to both he and the client of using false evidence. Stan: 4:52-5:31. The consequences to Stan for knowingly using false evidence can range up to and include disbarment. NYRPC 3.3. More importantly for the client, if Ms. Simon uses false evidence in the courtroom, she exposes herself to the potential of prosecution for perjury. Stan explains the downsides of her withholding information with regard to his ability to provide an effective defense, but his explanation of the duty of candor toward the tribunal could be much more impactful for the client had he explained she would be opening herself up to criminal sanctions by using false information. Simon: 7:17-7:31.

“Jack’s Meeting with Mr. Simon” demonstrates the pitfalls of an attorney not disclosing, at the onset of the meeting, his duty of candor toward the tribunal. Jack establishes at the beginning of the interview the importance of the client’s full disclosure to the outcome of the case. Jack: 1:02-1:10. Jack explains that there is the potential for a positive outcome even in the event that Gordon did in fact assault Ms. Montez. Jack: 6:05-6:19. In his rundown of some of the exceptions to attorney-client confidentiality, Jack omits from the discussion the exception of NYRPC 3.3 and his duty to be truthful in the proceeding. The closest he comes is when he warns Mr. Simon not to tell him about any intended future crimes. Jack 4:21-4:40. While perjury is technically a potential future crime, this statement leaves out the lawyer’s duty to not mislead the tribunal as to false statements made by clients which the attorney is aware. NYRPC 3.3(a)(4). He does not tell Mr. Simon that he may be obligated to break the confidentiality where he knows that false testimony has been presented. NYRPC 3.3(a)(4).

The client cannot fully comprehend the lawyer’s explanation of the duty of candor to the court because it is not stated at the onset of the meeting. Had the client been fully aware that his lawyer could not allow him to use false evidence, there is a good chance it would have impacted his truthfulness in the meeting. As it stood, Mr. Simon had an erroneous understanding that when he told Jack the truth about his son’s whereabouts, misleading the court was still an acceptable option. Jack: 16:43-16:58. To be effective, any discussion of the exceptions to the rule of confidentiality must be made before the client confides in the attorney.

Stan and Jack instill differing degrees of trust in their respective clients due in large part to the ways the interviews are conducted. Stan starts his meeting expressing concern for the client’s position by asking her at the onset if she had any specific questions about the case. Stan: 0:13-0:23. He next prefaced his following discussion on confidentiality by being open about how complex the subject is and noted that he doubted that “any one person could profess to really knowing it inside and out.” Stan: 1:00-1:20. This disclaimer quite possibly instilled trust by demonstrating honesty from the attorney; however it just as likely could have led the client to second-guess the attorney’s expertise. Stan took great lengths to ensure what he was telling his client was especially accurate, at one point opening a book to confirm the accuracy of his description of his duties to the court. Stan: 5:00-5:30. After expressing his unwillingness to allow false testimony, Stan provides reassurance by explaining that with the full truth, he could come up with a strategy to prevent her from being impeached on cross-examination. Stan: 7:10-7:30. Stan utilizes a policy of honest and upfront disclosure to demonstrate to the client that he had her best interests at heart; however he also gives the client reasons to feel hesitant in fully divulging the truth.

Jack builds trust early in his meeting by stressing the importance of confidentiality and providing assurances that the client’s full disclosure would result in a positive result. Jack 0:40-1:00. He tells Mr. Simon upfront that with full knowledge, “we could probably win our case,” but without it, “it’s highly unlikely that I’ll be able to win.” Jack: 1:20-1:50. His explanations of the rules are much more concise than Stan’s, as his primary focus seems to be on the importance of full disclosure to the outcome of the case.

In getting to the truth, Jack and Stan both discredit Gordon’s alibi by explaining to the clients the discrepancy in the actual scores and teams playing on the night in question. However, the attorneys differ in explaining potential subsequent actions and possible results to the case. Stan, before the subject comes up, explains to Ms. Simon that they would most likely plead no contest and hope for a probationary period in the event Gordon did leave the apartment that night. Stan: 14:15-15:00. Ms. Simon reacts with clear opposition to this idea, explaining her discomfort with probation. Stan: 15:05-15:20. Jack, on the other hand, is much more ambiguous about how he would handle the hypothetical that Gordon did leave the apartment. Instead of telling Mr. Simon that the plan would be a no contest plea, Stan simply says that he would try to convince the Authority not to evict, leaving open the possibility of still winning the case. Jack: 17:15-17:30. Mr. Simon is thus much more amendable to the idea that full disclosure would be in his best interest.

The two attorneys also differ in their interactions with the clients after it becomes apparent that the presented alibis are highly questionable. After Jack tells Mr. Simon that Gordon’s story is “not ironclad,” he reminds Mr. Simon of the importance of getting to the truth to his ability to form a strategy to defend against the Housing Authority’s questioning. Jack: 15:15-15:35. Stan also urges his client to be truthful; however, instead of stressing the importance of the truth to his strategy for the case, he reminds her of his duty for ensuing “what’s best for the law.” Stan: 19:45- 20:00. He also subsequently suggests that she tell the court that she was simply mistaken of the scores and the teams playing. Stan: 20:10- 20:25. Instead of putting it squarely on the client to be absolutely honest, Stan is more concerned with his duty of honesty to the court and seemingly allows the erroneous testimony simply because he does not absolutely know it is erroneous. Stan: 19:45-20:20. Whether he actually believes his client or subconsciously does not want to know the full truth, Stan creates an opportunity for his client to continue with the lie. Conversely, Jack closes off all opportunities for his client to continue using the false alibi by simply not offering any similar alternatives.

The explanations of confidentiality had direct impacts on the truthfulness of the clients. Stan includes in his discussion of confidentiality a dialogue of the attorney’s duty not to mislead the court by allowing false testimony. Stan: 6:25-6:45. Jack, while not lying to the client, misleads by not discussing his duties upon becoming aware of the truth. This results in a client feeling much more comfortable about disclosing the truth, but also one who might feel surprised and betrayed when the attorney, following an admission, has to explain that the information might not actually be privileged. Unsurprisingly, Mr. Simon is astonished to learn that Jack will not permit him to lie to the court. Jack: 17:45-18:10.

There is a careful balance that attorneys must take between fully informing the client of the exceptions to confidentiality and ensuring honesty and trust. Revealing too much specificity on the rules, without an explanation that the truth is the best and only option, could lead to a situation where the client is not altogether forthright. Failing to adequately explain the exceptions could lead to an interview like Mr. Simon’s, where the client feels deceived by the attorney. To achieve that balance, I would first, like Stan, clearly explain the exceptions under NYRPC 3.3 and make sure that the client fully understands. I would then explain to the client the personal risks they take on by knowingly lying under oath, ensuring that the client understands that these risks outweigh even an adverse ruling in their particular case. I would then present potential strategies for dealing with potentially adverse facts. In this case for example, instead of declaring a guilty plea as the only option, I would suggest the possibility of talking with Gordon to find a truthful alibi. Another potential option could be uncovering more about the witness and possible avenues for impeaching her testimony. There are many options other than just pleading and hoping for probation. A presentation of these options could potentially provide clients like Ms. Simon the reassurance necessary to gain optimal trust and disclosure.

In arriving at this particular course of action, it is important understand the framework for moral decision-making. Lawyers must have the capacity to identify and analyze moral issues, as well as have the motivation and ability to implement those decisions. The Four Component Model of Morality illustrates a standard for the process of making a “moral” decision. Clark D. Cunningham, Developing Professional Judgment: a More Ambitious Goal for the Professional Responsibility Course. It is important to initially understand the presence of moral issues and balance the competing interests. The attorney must have the willingness to prioritize the ethical decision of honesty over other interests like the client’s desired outcome in the case. Finally, implementing the ethical decision requires the upfront discussion of confidentiality along with the ability to instill trust and understanding with the client to ensure truthfulness. By using this framework, an attorney will not only make a moral decision, but also one that is implemented for the best possible outcome for both the client and the legal profession as a whole.