Ethical Considerations for Attorneys: ABA Rules in Practice”

QUESTION

Hi there.

Which ABA rules could I apply to these questions?

Annette Friel is a plaintiff’s personal injury attorney. On behalf of client Daniel Hathaway, she is defending against a summary judgment motion in state court in y case that turns on the definition of what constitutes a “defec- a products liability tive product designi” Annette’s research showed that, while it is a close question, the law supports her client’s position, and she has filed a strong brief. She feels that oral argument went very well, and that the judge is inclined to deny the defendant’s motion. At the conclusion of the hearing, the judge stated that she would take the matter under submission and render a decision within one week. recent opinions The next day, Annette spends some time reviewing the stack which has been accumulating on her desk. She sees a case in these “advance sheets” which is directly against her client’s position. Neither she nor opposing counsel had cited this case.

Questons

1. Does Annette have a duty to disclose the new case’s holding to the judge before a decision is rendered? Would doing so cause her to violate any duty to her client?

2. Suppose that upon rereading the case carefully, Friel concludes that harmful language redefining the meaning of “design defect” is not absolutely necessary to the case’s holding. May she now avoid raising the issue with the court because the bad language is merely dicta?

3. What if Annette learns of the new case only after the court clerk has posted a “tentative ruling” in her favor, which under the local court rules will become final unless her opposing counsel gives notice that he intends to argue the matter further the following day?

III.

In another state court case, Annette represents Mary Cooper, who has been injured in a car accident. Mary claims that the defendant drove through a stop sign at a four-way stop, hitting her and causing her injury. There are no independent witnesses. Although the police were called, and their report tends to corroborate Mary, Annette knows that the report only represents one officer’s opinion based largely on the client’s statement. The week before trial, Annette sends her inves- tigator back to the scene to canvass the neighborhood for eyewitnesses one last time. To her surprise, the investigator turns up an eyewitness who had been out of the country for some months after the accident. Unfortunately, the witness, who appears entirely credible, clearly recalls that it was Mary, not the defendant, who ran the stop sign. Pogro

Questions 

1. Assume that the discovery deadline has passed and (as is the law in many states) there is no order for the exchange of “ongoing discovery.” Must Annette disclose this information to the court or opposing counsel? May she?

2. May she have Mary testify at trial? May she then argue that there is no evidence other than the driver’s testimony to refute her client’s story?

3. In closing argument, may Annette say the following: “Unfortunately, no one witnessed the accident except the parties, so we have to rely on Mary’s recollection and the defendant’s, and the statements of the police officer, to piece together what happened.”

ANSWER

Ethical Considerations for Attorneys: ABA Rules in Practice”

The American Bar Association (ABA) Rules of Professional Conduct provide ethical guidelines for attorneys in the United States. These rules help lawyers maintain their professional integrity and protect the interests of their clients. Let’s analyze the questions in your scenario in light of the ABA rules:

1. Does Annette have a duty to disclose the new case’s holding to the judge before a decision is rendered? Would doing so cause her to violate any duty to her client?

Under ABA Rule 3.3 (Candor Toward the Tribunal), Annette has a duty to be truthful to the court and not knowingly make a false statement of law or fact. If she becomes aware of a new case that directly contradicts her client’s position, she should disclose it to the court promptly. This is to ensure the integrity of the legal process.

However, ABA Rule 1.6 (Confidentiality of Information) also obligates Annette to protect her client’s confidential information. She should be cautious about disclosing information that could harm her client’s interests. In this case, if revealing the new case would significantly harm her client, she may need to address this with the client and potentially seek their informed consent before disclosing the new case to the court.

 Suppose that upon rereading the case carefully, Friel concludes that harmful language redefining the meaning of “design defect” is not absolutely necessary to the case’s holding. May she now avoid raising the issue with the court because the bad language is merely dicta?

Annette’s ethical duty is to provide accurate and honest representations to the court. If she determines that the harmful language is dicta and not essential to the case’s holding, she may have the discretion to avoid raising the issue with the court. However, she should exercise caution and consider her duty of candor toward the tribunal. If she believes that the dicta could mislead the court or opposing counsel, it may be ethically advisable to bring it to the court’s attention.

 What if Annette learns of the new case only after the court clerk has posted a “tentative ruling” in her favor, which under the local court rules will become final unless her opposing counsel gives notice that he intends to argue the matter further the following day?

If Annette discovers the new case after the court’s tentative ruling but before it becomes final, she should promptly disclose the new case to the court and opposing counsel. ABA Rule 3.3 requires her to correct any false statements of law or fact that she has previously made to the tribunal. Failing to disclose the new case, especially when it contradicts her client’s position, could lead to ethical violations.

Regarding your second scenario:

Assume that the discovery deadline has passed and (as is the law in many states) there is no order for the exchange of “ongoing discovery.” Must Annette disclose this information to the court or opposing counsel? May she?

Annette may be faced with a dilemma here. If the discovery deadline has passed, she may not have a legal obligation to disclose this new witness’s testimony. However, ethical considerations come into play. ABA Rule 3.3 mandates candor toward the tribunal. Annette should consider whether not disclosing this information would be misleading or result in a misrepresentation to the court. While she may not be legally required to disclose it, there could be ethical implications if she remains silent about a key eyewitness who contradicts her client’s claim.

May she have Mary testify at trial? May she then argue that there is no evidence other than the driver’s testimony to refute her client’s story?

Annette may have Mary testify at trial, as long as Mary’s testimony is truthful. However, Annette’s ethical duty under ABA Rule 3.3 requires her to present evidence truthfully to the court. If Mary’s testimony contradicts the eyewitness’s account, Annette should be cautious about making misleading arguments to the court. She can argue that there is a conflict in the evidence, but she should not misrepresent the evidence or suggest that there is no contradictory testimony when there is.

In closing argument, may Annette say the following: “Unfortunately, no one witnessed the accident except the parties, so we have to rely on Mary’s recollection and the defendant’s, and the statements of the police officer, to piece together what happened.”

Annette may make such a statement in closing argument, as it accurately reflects the situation. However, she must be careful not to overstate the evidence or imply that there were no contradictory witnesses when there is one. ABA Rule 3.4 (Fairness to Opposing Party and Counsel) requires lawyers to be truthful and not engage in deceptive practices during trial. Therefore, Annette should present the evidence fairly and accurately while acknowledging the existence of the contradictory witness.