Ethics Corner Article

New Hampshire Bar News – December 14, 2012

Dear Ethics Committee: I am preparing for my first motion hearing in a case I inherited when I joined my new employer’s firm. I have discovered during my research in preparation for the hearing that there is one possibly obscure New Hampshire case that destroys my client’s position and makes me question the legal research skills of my predecessor who filed this lawsuit. The lawyer representing the opposing party is much more experienced than I. I certainly expect opposing counsel to discuss the case when arguing to the court, although it is not cited in the pleadings filed to date. This is my first case and I do not want to lose. If opposing counsel does not disclose the case to the court, must I disclose it?

The answer depends on whether the case you found is controlling and adverse to your client’s position. Before addressing the ethics of required disclosure, consult with another lawyer in your office to confirm whether the case is both controlling and adverse.

If you determine that the case is, indeed, both controlling and adverse but your opponent does not disclose it to the court, you must do so, despite the potential consequences to your client’s case. Failing to disclose the case is not an option – it is mandatory under the ethics rules. Rule 3.3(a)(2) of the New Hampshire Rules of Professional Conduct states that a lawyer shall not knowingly 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. (Note that because of countervailing duties of confidentiality and loyalty, the Rules do not impose a similar duty to disclose all facts known to the lawyer, unless the matter involves an ex parte proceeding. See Rule 3.3(a)(c). However, the lawyer may not offer evidence that the lawyer knows is false. See Rule 3.3(a)(1).)

If disclosure to the court is required, you will need to tap into the creativity that trial lawyers must apply to solve clients’ problems by developing a strategy that would work to your client’s advantage. Ultimately, your role is to argue your client’s case in the best way possible, without running afoul of the rules that govern adjudication of the legal problem. While the pressure you feel to succeed is enormous, this one case is not about you, nor is it more important than the value of your reputation and future in the profession. Most importantly, it is not greater than your duty to the legal system itself.

The Rule 3.3 requirement stems from your duty as an officer of the court to ensure that the justice system is not sabotaged. Practicing law includes the ever-present need to balance a client’s wants and expectations with your duty to protect the legal system as an officer of the court. There are additional concerns that you may not have considered. For example, what would be the repercussions for you and your client if the judge’s clerk were to find the case? What if the court has already considered the case and intends to address it during the hearing? What impact will this have on your employment situation if the failure to disclose is ultimately discovered and this information finds its way back to your firm?

While you may feel a tremendous amount of pressure to hide this case law from the court as a means to help your client win, maintain client satisfaction and impress your new employer with your legal skills, your obligation to ensure a fair legal process includes ensuring that the court is aware of directly applicable legal authority in the controlling jurisdiction, so that the court can make a sound decision.

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing the Ethics Committee Staff Liaison. Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News.