By Steven Siegler
“Nobody’s perfect.” That is certainly true when it comes to litigants in a lawsuit. Rarely is one side so overwhelmingly just in their cause that the other side has no chance of winning. The more usual situation involves parties who each have made missteps along the way. But what should an attorney do when they suspect that their client has made a big mistake – or even broken the law in some way? This question involves the interplay between two important ethical concepts.
On the one hand, an attorney has an ethical duty to zealously represent and defend their clients. This requires an attorney to fervently defend every client, no matter what they did or did not do, to the best of their ability. A lawyer’s personal feelings or suspicions about a client’s conduct must not be a factor in terms of the quality of representation provided.
On the other hand, however, an attorney has an ethical duty of candor towards the court and opposing counsel. Attorneys are officers of the court and thus must be honest in their dealings with not only the court, but also fellow attorneys and members of the public. Thus, an attorney may not allow their client to present evidence which the attorney knows to be false, including testimony and documents.
For example, consider a civil trial attorney who, while representing a client, learns through the client’s own statements and documents that “mistakes were made” – perhaps big ones. Does the attorney’s duty of candor override their duty of zealous representation and require the attorney to withdraw from the case? The simple answer is no. A client’s admission of wrongdoing to their attorney does not foreclose other defenses to the claims against them. A skillful defense attorney will focus on the weak points of their opponent’s case, play up the strengths in their own case and seek to neutralize any damaging evidence. Further, the burden of proof always rests with the plaintiff – and there usually are issues in the plaintiff’s case as well. No client is automatically liable for claims against them – even if it appears they have violated the law. Only the judge and jury will decide liability. For these reasons, even a client who appears to have broken the law can win a trial.
Clients who have made mistakes along the way may be hesitant to be honest with their attorney about these mistakes. But relating the facts of the case honestly to their attorney is an absolute necessity. An experienced defense attorney will work with their client to smooth out any bumps in their case – even big bumps – through diligent preparation, skillful advice, and smart strategy. In this way, even clients who may have broken the law can prevail.
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