Andrew Rubin, Esq.

The duty of candor to the court and legal malpractice, P.3

We’ve been looking in recent posts at the duty of candor attorneys owe to the court, and the harm that can result from their failure to properly exercise their duties in this area. Last time, we mentioned several potential scenarios which could constitute an abuse of the duty of candor to the court. These scenarios involve harmful disclosures of information to the court or taking unnecessary or unreasonable remedial measures to correct the situation.

One scenario that could come up in this context is when the attorney discovers that evidence offered to the court is false and the attorney seeks to make disclosure to the court. If the disclosure is harmful to the client’s interests, this could potentially constitute an abuse of the duty of candor. 

Ordinarily, an attorney who discovers that testimony was perjured or that false evidence was offered is ordinarily required to privately work with the client to correct the situation. If that doesn’t work, then the attorney is supposed to withdraw from representation. When withdrawal isn’t possible or will not remedy the situation, only then may disclosure be made. This process is in place to protect clients, and an attorney who fails to follow this process may be determined to have abused their duty of candor to the court by acting against their client’s interests.

Although violations of the duty of candor are relatively rare, they can do harm to clients when they occur. Those who have had their legal interests significantly harmed as a result of an attorney’s failure to properly exercise his or her duty of candor to the court, or any other professional duty, should work with an experienced legal malpractice attorney to hold the attorney accountable. 

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