Excuses, excuses. Reaction to the April 7th Daniels v. Alander decision out of Connecticut has not exactly been edifying. We posted on the case two weeks ago and generated an interesting thread of commentary. Last week, it was also covered in the ABA Journal eReport, in an article titled “To Tell the Truth — and Dispute the Boss: Court Reprimands Attorney for Not Correcting ‘Misstatements’.” (Thanks to John at LegalReader for the pointer.)
In an unanimous decision on the scope of ethical Rule 3.3 [Candor Toward the Tribunal ], the Conn. Supreme Court held (emphasis added) that
“Depending upon the circumstances, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”
The Court has not carved out an inflexible, draconian standard of associate omniscience and vigilance. Please let me sum up its ruling:
Mr. or Ms. Lawyer, there will be times when your knowledge that the tribunal is being misled will require you, as an officer of the court, to find a way to correct a misconception created in your presence, even when you are junior in status to the lawyer misleading the court. One of those times is when — in the words of the lower Appellate Court decision (April 2003) — “co-counsel made any number of misstatements about facts that purportedly came, and under the circumstances of this case, could only have come, from [your] own personal observations and knowledge of events that occurred outside of the court’s presence. “
As I opined on April 8th, the correctness of this principle seems obvious (and there should be no de minimis exception if the point is material). Instead of hearing strong, loud encouragement for junior associates to do the right thing, even though it may often take some courage, we hear a chorus of excuses — cowardly catastrophizing and downright distortion about the scope of the court’s interpretation of Rule 3.3.
.. hear no evil, . . .
According to the ABA Journal, a young associate who requests anonymity moans that, in practice, being truthful is “basically committing professional suicide” –“explaining that if a young associate in her old firm raised ethical issues, the partners tended to ‘look at you as if you had four heads.'” Well, having four heads is preferable, I believe, to having no backbone. Talk of instant professional suicide is silly — (1) losing such a job is not losing your profession, but would instead be keeping your professionalism alive; (2) it assumes an automatic degree of veniality in your bosses that even skepticalEsq won’t ascribe to them; and (3) it suggests that a job with a bunch of ethics scofflaws is worth nurturing.
The article notes that reprimanded associate “Driscoll himself says his former boss, who no longer practices law, would not have been angry if Driscoll corrected him.”
Driscoll’s lawyer Kevin A. Votre turns the obligation into a farce, asking how many associates are going to “jump up and say, ‘He’s not telling the truth, your honor’?” My reply: no associate with any sense would do it that way — and if he or she did, the foolish lack of discretion would jeopardize the job more than the correction of the misstatement. As ethics professor Geoffrey C. Hazard Jr., advises in the article,
“It’s obviously very, very tough,” Hazard says. “The kid, the younger lawyer, certainly should be very clear and ought to tug at the senior attorney’s coattails and see the judge in chambers afterward–make it as nonconfrontational as possible.”
Lawyer Votre also mis-interprets the Court’s ruling: “But associates are going to be in a tough position to make judgment calls. There has to be some relief from that rule. Maybe if you have a good-faith belief the lawyer is telling the truth?” Sorry, Votre, but the Driscoll Court clearly is not saying that Rule 3.3 would be violated when the silent lawyer has a good-faith belief the lawyer is telling the truth. Maybe we need an ethics rule about lawyers misleading the media and the public.
Senior lawyers need to let their juniors know that you expect and want candor. Juniors need to remember that ethics rules apply even when it takes courage to comply. Being a lawyer is special and does entail special obligations.