Over the years, much has been written about the lawyer’s duty to
zealously represent the client.
One of the most famous statements was made in the 19th Century by Lord
Brougham when he was representing Queen Caroline in her divorce from King
George IV. Brougham threatened to destroy his own government on behalf
of his client:
“…an advocate, by the scared duty which he owes his client…must
go on reckless of the consequences, if his fate it should unhappily be
to involve his country in confusion for his client’s protection.”
Brougham was prepared to deprive the king of his crown, if that was what
it took to get justice for his client. While this seems like an extreme
position, from Queen Caroline’s perspective, it doubtless seemed
Lord Brougham’s point was that representing a client means standing
in that client’s place, using all legal, honorable, just, and ethical
tools and weapons, on behalf of the client.
Of course that is the point of the adversarial system of justice; if both
sides fight the good fight, before a fair and impartial judge, and sometimes
also a jury, we have our best opportunity for a fair result. Imperfect,
but superior to any other system devised by man.
But what are the limits? What is the point at which the business client
cannot expect the lawyer to advocate for the desired result?
Most business people are aware of the fact that an attorney will not create
a false document, or destroy an authentic document, or perform other clearly
outrageous acts that are patently unethical and perhaps illegal.
But not all clients understand the obligation of a lawyer to the adjudicative
process. Certainly an attorney has an obligation to strongly present a
case, and also to maintain client confidentiality. But if a lawyer knows
of false statements of law or fact, the lawyer has an affirmative duty
to avoid misleading the tribunal.
The Nebraska Rules of Professional Conduct, Rule 303 specifically deals
with candor towards the tribunal:
(a) A lawyer shall not knowingly:
(1) make a false statement of factor law to a tribunal or fail to correct
a false statement of material fact or law previously made to the tribunal
by the lawyer;
(2) 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;
(3) offer evidence that the lawyer knows to be false. If a lawyer, the
lawyer’s client, or a witness called by the lawyer, has offered
material evidence and the lawyer comes to know of its falsity, the lawyer
shall take reasonable remedial measures, including, if necessary, disclosure
to the tribunal. A lawyer may refuse to offer evidence, other than the
testimony of a defendant in a criminal matter, that the lawyer reasonably
believes it is false.
(b) A lawyer who represents a client in an adjudicative proceeding and
who knows that a person intends to engage, is engaging or has engaged
in criminal or fraudulent conduct related to the proceeding shall take
reasonable remedial measures, including, if necessary, disclosure to the
The law, as with all aspects of human experience, is filled with differences
of opinions and perceptions regarding what are the true facts of any case.
For this reason, the lawyer must present his client’s case in the
most favorable light possible. Yet the lawyer must never confuse zealously
advocacy with dishonesty toward the court.