Ethics

Columbia's Bill Simon has sent in the post below in response to an earlier post by Monroe Freedman:

In a recent article in the Georgetown Journal of Legal Ethics, I argued that lawyers sometimes have a duty to disclose adverse information about legal authority to an opposing party even when the disclosure would disadvantage the client.  In a December post that I just saw Monroe Freedman considers it an objection to my argument (among many) that it implies that the lawyer should make the disclosure without telling the client.  Since several other people, including Steve Pepper and Kate Kruse, have echoed this concern, I want to respond to it.

I think their concern is basically this: If the lawyer does not tell the client about the disclosure, then she is violating her duty to keep the client informed of material information.  If she does tell the client, the client may object and then respond by discharging the lawyer and finding a more zealous replacement.

Suppose you?re representing a client in high-stakes litigation and you learn that the judge is open to bribery.  Your client is the only party who could afford a sufficient bribe, and the judge is about to make a decision on a matter that is likely to be decisive.  Presumably, everyone agrees you have a duty not to facilitate the bribe.  Do you have a duty to tell the client that he has this opportunity but that you are not going to help him take it? 

I suppose if the client is expecting you to bribe the lawyer, you should disillusion him on this point.  But what if the opportunity has never occurred to the client?  Let?s suppose that there are lawyers in town who would pay the bribe.  Should you tell the client about your position so that he can discharge you and go to these more accommodating lawyers?

I doubt if it?s controversial to say there?s no duty to inform the client about this opportunity.  The matter is simply not open to decision by the client.  Most clients wouldn?t be interested in the opportunity.  And with respect to those who would, telling them would amount to counseling or assisting unlawful activity.

I assume Freedman et al. agree about the bribery example but would insist the Mistake-of-Law example is different because the lawyer has no duty to disclose there.  But the main theme of my argument in the article was that the lawyer does have a duty to disclose there.  If I am correct about that, the objection about client disclosure is wrong.  There?s no duty for the lawyer to disclose where the client has no right to make a decision on the matter and where he could not make any legitimate use of the information. 

It?s possible that Pepper and Kruse have a somewhat different objection.  If the lawyer discloses to the client where the client can see that assisting the adverse party is a duty, the client is likely to authorize the lawyer to do the right thing, and that?s good.  So not disclosing deprives the client of an opportunity to do the right thing.  First, I don?t think law-respecting clients need or want their virtue to be tested in this manner.  Second, even if they do, depriving them of whatever satisfaction they get from resisting temptation is the price we have to pay for not encouraging bad behavior by the others.

Of course, the critics don?t agree that the law is disrespected by failure to disclose to the adverse party.  Fine; they should explain why not.  But the client disclosure argument is a red herring.