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Tripping Over an Ethics ProblemTripping Over an Ethics Problem

Tripping Over an Ethics Problem

Kirk Simoneau

Lawsuit Information

And so, as it turns out, your client lied, or, at least, you’re pretty sure he lied.

Most lawyers don’t expect to encounter ethical issues trying slip and fall cases. First, ethics is an entire field of study, what we lawyers face are Rules of Professional Conduct issues, and if you have clients - no matter the case type - you will have such issues.

Rule 1.16(b) allows withdrawal in such cases. In fact, Rule 1.16(a) requires a lawyer to withdraw if if the representation requires the lawyer to violate either the rules or the law. Here, though, let’s assume you don’t know, but only believe, a client is lying.

So first, you don’t have to withdraw, but you may. Rule 1.16(b). 

Of course, if you do withdraw after suit is filed, you need to seek court approval. Rule 1.16(c). This is a dicey prospect because you have to withdraw in such a way so as not to prejudice the client’s case. Rule 1.16(d). 

Since you must rely on client confidences to provide facts to support withdrawal, do not put them in your motion and, if necessary, request an in camera review of the needed facts by the court.

Whether to withdraw because you have lost faith in your client is a personal decision, but, in any case, I am not an effective advocate unless I believe in my cause. Also, I believe the justice system is for justice. Luckily, there are warning signs.

First, and perhaps most obvious, if you just have a bad feeling… trust it. If your client asks your opinion about how a set of facts would “play,” run away. If the client’s story changes, such as becoming much more detailed, you should be concerned.

For those looking for a legal standard, various courts have applied a number of difference standards: “good cause to believe;” “compelling support;” “knowledge beyond a reasonable doubt;” “firm factual basis;” “good faith determination;” and “actual knowledge.”

Once suit is filed, though, you really need a high level of certainty that your client is fabricating his story. If you do, you can first use the threat of withdrawal to get a client back in line. The idea of being “fired” usually gets clients back on board. Of course, if there is no case without the lie, you’ll need to discuss dropping the whole thing as approaching defense counsel about a quick, low-dollar settlement. 

In the end, if you know your client is lying, thus resulting in a violation of the Rules and the law, you must withdraw. If you simply believe your client is lying, you may withdraw, and I strongly encourage you to do so. 

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