Law Life: Protecting your client's interests -- and your own

By William C. Saturley and Bernard D. Posner

The Daily Record Newswire

We assume that our clients tell the truth. We make representations to all types of tribunals on that bedrock assumption. Occasionally, however, the earth shifts, and you realize a client may have "misremembered" certain facts.

The following steps will help you protect both your client's interests and your own:

Establish an early rapport

Any effective representation requires good communication between client and attorney. Good communication requires trust. Trust requires familiarity. The best start in that direction is an early meeting with the client, in person.

During the meeting, explain how your communications about the matter are protected. Discuss the attorney-client privilege and explore all the means by which you can protect confidential information, warning that information and communications will be exposed if he shares them with others.

Teach your client how you will use the information he provides. Anticipate that you will learn facts that hurt the client's cause, and discuss that eventuality. Explain that it is your job to minimize the impact of bad facts, but that you cannot do your job unless you are aware of those facts. The more comfortable the client is with you, the more likely he is to reveal all the facts, even the unflattering ones.

Do the right thing

What if, despite your best efforts, your client misrepresents an important fact during a deposition or hearing, or misleads you in a way that you make the misrepresentation yourself?

The version of Rule 3.3 of the Rules of Professional Conduct adopted in many jurisdictions mandates that if either you or a client offers false testimony to a tribunal, you must rectify the fraud or you will be judged to have assisted in it. The rule applies both contemporaneously and to your later discovery of the falsity. Rule 4.1 creates similar obligations in your dealings with third parties.

There is an old trial lawyer adage dealing with the prospect of a lying witness: "If someone has to go to jail, make sure it's not you." In this context, that means determining what you should do once you learn of false evidence.

If you have any doubts as to whether a statement is untrue, seek clarification. Then explain the importance of being truthful during litigation. In particular, explain how even minor misrepresentations can negatively affect the witness's credibility.

Help the client set the record straight as soon as possible. If you are in a deposition, counsel your client to correct the record after a break, or while on redirect. If before a tribunal, seek the best opportunity to explain why the facts were presented incorrectly. If the client is amenable to correcting the record, he can do so with your help in a way that minimizes the harm to his credibility.

If your client is initially unwilling to correct his mistake or false testimony, explain that you are ethically obligated to reveal the misrepresentation and that the correction would be better received coming from him, with your help minimizing its damage.

Withdrawal

A misrepresentation that the client refuses to correct provides grounds for withdrawal. Withdrawal, by itself, may sufficiently alert the cout of your concern about the evidence (sometimes, in this and other settings, called a "noisy withdrawal"). If withdrawal alone will not correct the misrepresentation, you are permitted to affirmatively inform the court of the misrepresentation.

Before taking such a step, however, make sure you are on absolutely solid ground that a material misrepresentation took place. If you intend to reveal confidential information during the disclosure, consider giving your client notice of the intended disclosure to allow him another chance to reconsider.

You may wish to ask other counsel to review your conclusions and your notice to the client and the tribunal, as protection against a charge that you violated your client's trust and your obligations to him.

Honesty is the best policy

Most risk managers and brokers will counsel you that the best way to avoid claims is to communicate with your client, early and often, and clearly. Establishing the ground rules for honesty before the tribunal is a great way to keep your claims record clean.

In conclusion, assume your client is truthful, but make clear what will happen if you are given incomplete or false information. Communicating with him on this subject in this fashion will best protect him from damaging his case and compromising your ethics.

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William C. Saturley and Bernard D. Posner are members of the business litigation and professional liability practice groups at Nelson, Kinder, Mosseau & Saturley in Boston. Saturley can be contacted at wsaturley@nkms.com; Posner is at bposner@nkms.com.

Published: Thu, Apr 28, 2011

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