Andrew Rubin, Esq.

The duty of candor to the court and legal malpractice, P.1

At the heart of many legal malpractice claims is a lawyer’s violation of ethical duties as articulated in state rules of professional conduct. These duties include things like: handling a client’s case with competence and diligence; keeping clients updated about the status of their case; avoiding conflicts of interest; and handling client funds responsibly.

One of the fundamental duties an attorney has in any case is to zealously advocate for a client. This duty should prompt an attorney to vigorously pursue a client’s interests under the facts and circumstances of the case. There are limitations on this duty, though, because attorneys have duties not only to the client, but also to the court. An attorney’s duties to the court include the duty to be truthful with the court. 

The duty of candor to the court prohibits a lawyer from: knowingly making false statements of material fact or law to a court; failing to disclose a material fact to a court when the disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client; offering evidence the lawyer knows is false; or failing to disclose legal authority harmful to the client’s position which is known to the lawyer but not disclosed by opposing counsel. The duty obligates attorneys to take reasonable remedial measures to correct material evidence he or she comes to learn is false.

The New Jersey rules also prohibit attorneys from failing to disclose material facts to the court, whether about issues in the case or relating to the management of the case, when omission is reasonably certain to mislead the court, unless the disclosure is prohibited by law or protected by privilege. Attorney-client privilege, of course, is an important principle of evidence which prevents communications between attorneys and clients from being compelled into evidence.

Along with the duty of confidentiality, attorney-client privilege helps ensure clients can communicate frankly with their attorneys. The duties of confidentiality and privilege, though, do not apply when there is a risk of misleading the court by failing to disclose information to the court or when the lawyer learns that he or she has submitted false information to the court.  

In our next post, we’ll continue looking at the duty of candor to the court, some of the ways an attorney’s exercise of this duty can go wrong, and how an experienced legal malpractice attorney can help a client to seek compensation when his or her attorney acts improperly. 

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