When the Rules of Professional Responsibility Collide

All lawyers have ethical obligations to the public, the courts, their clients, and even opposing counsel and parties. In Massachusetts, the Rules of Professional Conduct issued by the Supreme Judicial Court govern almost every aspect of legal practice. Two of the most recognized rules are those addressing the confidentiality of information and zealous advocacy. Preserving client confidences is paramount in the legal profession and serves the public interest because people are more likely to seek legal advice and heed their legal obligations when they know their communications will be private. A counterpart to this rule of confidentiality is the directive that “a lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.”

Remedial Measures

On the other hand, the rules also decree that “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.” When these rules of confidentiality and candor come into conflict, a lawyer may be presented with a difficult situation.

Lawyers Report Client’s False Testimony

In one recent case a child care provider appealed the suspension and revocation of its license by the Department of Early Education and Care (EEC) to the Massachusetts Division of Administrative Law Appeals. An investigation revealed issues with certificates designed to prove that the child care staff members had completed CPR training required by the state. Two of the staff members, though having completed the training, did not hold valid certificates due to a delay in paying the American Red Cross for the course. Unfortunately, the child care provider supplied the EEC with obviously falsified certificates for the two staff members. In an effort to explain the discrepancies in the certificates, the owner and operator of the child care center testified before the administrative judge. A day later the two attorneys for the owner wrote a letter to the judge reporting that they believed their client’s testimony at the hearing “was not accurate and should not be accepted as true for the purposes of the resolution of this matter.”

Court’s Decision

In his written decision, upholding the license suspension and revocation, the judge noted the “all too rare” example of lawyers upholding their obligations of candor toward the tribunal. The judge stated that despite the disclosure, he had independently determined that the witness was not credible. He further stated that it was not essential to his decision to determine who falsified the CPR certificates or why, “but when someone takes the time and effort to falsify such documents, which are important to a child care facility, the reason cannot be benign.” The moral of this case for lawyers may be that when preparing a witness to testify, it is wise to also advise of the consequences of not telling the truth.

 


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