Zealous Advocacy

Over the years, much has been written about the lawyer’s duty to zealously represent the client.

One of the most famous statements was made in the 19th Century by Lord Brougham when he was representing Queen Caroline in her divorce from King George IV. Brougham threatened to destroy his own government on behalf of his client: “…an advocate, by the scared duty which he owes his client…must go on reckless of the consequences, if his fate it should unhappily be to involve his country in confusion for his client’s protection.”

Brougham was prepared to deprive the king of his crown, if that was what it took to get justice for his client. While this seems like an extreme position, from Queen Caroline’s perspective, it doubtless seemed reasonable.

Lord Brougham’s point was that representing a client means standing in that client’s place, using all legal, honorable, just, and ethical tools and weapons, on behalf of the client.

Of course that is the point of the adversarial system of justice; if both sides fight the good fight, before a fair and impartial judge, and sometimes also a jury, we have our best opportunity for a fair result. Imperfect, but superior to any other system devised by man.

But what are the limits? What is the point at which the business client cannot expect the lawyer to advocate for the desired result?

Most business people are aware of the fact that an attorney will not create a false document, or destroy an authentic document, or perform other clearly outrageous acts that are patently unethical and perhaps illegal.

But not all clients understand the obligation of a lawyer to the adjudicative process. Certainly an attorney has an obligation to strongly present a case, and also to maintain client confidentiality. But if a lawyer knows of false statements of law or fact, the lawyer has an affirmative duty to avoid misleading the tribunal.

The Nebraska Rules of Professional Conduct, Rule 303 specifically deals with candor towards the tribunal:

(a) A lawyer shall not knowingly:

(1) make a false statement of factor law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes it is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal….

The law, as with all aspects of human experience, is filled with differences of opinions and perceptions regarding what are the true facts of any case. For this reason, the lawyer must present his client’s case in the most favorable light possible. Yet the lawyer must never confuse zealously advocacy with dishonesty toward the court.

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