A Lawyer’s Obligation of Candor
Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective Nov. 1, 2018, provides more specific guidance to lawyers relative to this duty.
Rules 1.2.1, 3.3, 3.4, 4.1, 4.2, 4.3, 7.1 through 7.5, and 8.4 all implicate this duty, as well as Business & Professions Code (B&P) sections 6068(d), 6106, and 6128, among others. This article will focus on the Rules of Professional Conduct (RPC), violations of which constitute a cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.
Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.
It is highly recommended that all lawyers review the RPCs at least once per year. The main reason being that every lawyer in the State of California is required to be an ethics “expert,” to the extent they know what the RPCs require; to violate them is not only below the standard of care, but could cost a lawyer their livelihood, or at the very least a “black mark” against their record, which can follow a lawyer for their entire career. Public discipline by the State Bar will be displayed prominently on a lawyer’s State Bar page, and can never be removed. Decidedly bad for obtaining clients or employment.
The California RPCs were significantly changed in November of 2018. A new numbering system was implemented, and now California’s rules are virtually identical to the ABA Model Rules. Unchanged are a lawyer’s duties to be scrupulously honest and truthful in all dealings — with clients, the court, opposing counsel, and third parties — whether in the practice of law or not.
The B&P Code is the source that allows the State Bar to prosecute lawyers for violations of ethical requirements, and section 6068 contains a long list of an attorney’s duties. For instance: “It is the duty of an attorney to do all of the following:
(d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (Emphasis added.)
The RPCs are intended to regulate the conduct of lawyers through discipline, with the main goal of protecting the public, safeguarding the integrity of and trust in the legal system, and to generally promote the cause of justice. The very first rule, 1.0, specifically provides that “a willful violation of any of these rules is a basis for discipline.”
Willfulness is not dependent upon a knowing violation of the rule, but simply an intention to do the act which constitutes a violation. While a violation of the rules is not in itself a basis for a malpractice claim, where the violation causes harm to a client, it definitely creates such basis. In addition, a violation of any of the RPCs may constitute a basis for disgorgement of fees, because the violation renders the services “valueless.”
The comments to the Rules of Professional Conduct are important as they “provide guidance to the practitioner for interpreting and practicing in compliance with the rules.” Likewise, the State Bar website has many other resources for obtaining guidance in following the RPC, including ethics opinions from not only COPRAC[1], but also other bar associations throughout the state, including San Diego, Los Angeles, and San Francisco. There is also an Ethics Hotline available through the State Bar, in addition to the SDCBA Hotline, with free access to members. In other words, there is no valid excuse for non-compliance with ethical rules.
Other RPCs that implicate a lawyer’s duty of honesty and candor include the following:
1.2.1 forbids a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Likewise, RPC 3.3 “Candor Toward the Tribunal” dictates that a lawyer “shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by a lawyer.” Nor may a lawyer, pursuant to this rule, fail to disclose to the court controlling case or statutory law that is directly adverse to the lawyer’s client’s position, or to misquote any statute or case law holding. Knowingly presenting false evidence in court is a clear violation of this rule, and if the lawyer becomes aware that a client or any witness called by the lawyer has offered material evidence that is false, it is the lawyer’s obligation under this rule to take reasonable remedial measures to correct the situation, as long as those measures do not cause the lawyer to violate confidentiality. (See RPC 1.6.)
RPC 3.4, entitled “Fairness to Opposing Party and Counsel,” broadly requires that a lawyer be honest with opposing parties and their counsel when representing a client. This rule prohibits a lawyer from unlawfully obstructing another party’s access to evidence—both documents and witnesses—that is material to a matter on which a lawyer is retained. Nor can the lawyer instruct anyone else, including a client, to obstruct access to evidence. Suppression of evidence that a lawyer is legally obligated to produce violates this rule, as does falsifying evidence or testimony. Included in this rule is the prohibition against paying a witness to lie, or advising a person to make themselves unavailable as a witness.
RPC 4.1 also requires that counsel “shall not knowingly (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited [by a lawyer’s duty of confidentiality].”
In providing information about legal services, including in advertising, a lawyer must also be scrupulously honest, according to RPCs 7.1 – 7.5. These rules mandate that lawyers are forbidden to make any false or misleading communications about the lawyer or the lawyer’s services in any context, whether in advertising, communications about fields of practice and specialty areas, or even in firm names and trade names.
RPC 8.4, entitled “Misconduct,” includes an omnibus proclamation that lawyers are prohibited from committing any act that “reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” The rule also dictates that lawyers shall not “engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation,” just in case the other RPCs and B&P Code sections comprising the State Bar Act didn’t already make that mandate clear!
Lawyers have enjoyed an elevated status in our society dating back hundreds of years due to the rules of honesty and truthfulness that are the hallmark of our profession. In order to maintain the public’s trust in the fairness and justice of our judicial system, and to claim the prestige that once was given to the likes of Thomas Jefferson and Abraham Lincoln, we must maintain adherence to truth and honesty, regardless of what the rest or society is doing.
We cannot lose sight of our professional obligations for the sake of winning a trial or getting the upper hand for our clients in a transactional matter. We are responsible for letting our clients know that the rules of ethics trump any client demands or instructions to engage in a dishonest act, which should start at the first meeting and be included in every attorney’s engagement agreement.
[1] “COPRAC” is the State Bar’s Committee on Professional Responsibility and Conduct.