In our last post, we began looking at the duty of candor attorneys owe to the court, and how this duty can sometimes run counter to an attorney’s duty of confidentiality to the client and the attorney-client privilege. Confidentiality and privilege ordinarily are so ingrained in an attorney that the prospect of having an ethical obligation to inform the court of matters disclosed to the attorney in private is unnerving.
It is important to understand that, while attorneys do have a duty to be candid with the court and that this may, in some cases, require them to disclose information that harms the clients interests, attorneys must also act with due caution in doing so, otherwise they risk liability for legal malpractice.
Though such situations may not be terribly common, there are several potential scenarios where an attorney could make a mistake in exercising his or her duty of candor to the court:
- The attorney, wrongly believing that a client engaged or will engage in act that is illegal, fraudulent or criminal, discloses to the court information which harm the client’s interests; alternatively, a lawyer may disclose information to the court which harm a client’s interests but which aren’t “necessary” to avoid client wrongdoing.
- The attorney, wrongly believing that the court is in danger of being mislead on some matter because of an omission, discloses facts to the court which harm the client’s interests.
- They attorney, after having found out that he or she offered false evidence to the court, takes remedial measures which could not be considered “reasonable” in an effort to correct the situation, harming the client’s interests as a result. An attorney could also possibly cause problems for a client if the evidence offered to the court was not material to the issues in the case, and remedial measures were taken which harmed the client’s interests.
In our next post, we’ll say a bit more about this issue, and the importance of working with a dedicated legal malpractice attorney to address losses stemming from improper exercise of the duty of candor.