Friday, March 6, 2015

Lawyers: When can you trust your client? Or: the danger of not fact-checking

Every jurisdiction has a form of Rule 11 of the Federal Rules of Civil Procedure, which requires a lawyer's diligent investigation of what a client says: "By presenting to the court a pleading, written motion or other paper—whether by signing, filing, submitting or later advocating it—an attorney ... certifies that to the best of the person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances, … the factual contentions have evidentiary support."

But the problem is, if your client lies to you, and you believe that client, and put what she tells you into pleadings, then you - the lawyer- are lying to the court.

Article here.  

And of course, that's a danger since your license to practice is on the line everytime you write a pleading, or state something to the court. So if you're not fact-checking your clients, you could end up in hot water.

One way I have adopted to deal with this is asking a question. Instead of listening to the client, and then saying "how do I know this is true?" or behaving skeptically, I will ask the client "What will the other side say that would make our position less favorable to the court?" 

It's a leading question in a way, since it hints at the idea that there is something the other side knows and will use against you. And it also hints that the client know what it is, too. The danger if you don't ask this question is that you & the client go into court on different footing: you only have heard what the client has told you, and haven't any idea what else the client knows.

This question has lead to some interesting discoveries or revelations from clients, trust me.

1 comment:

  1. Nice post..One common oversight is to make a bequest to a person, and not provide for what is to happen if that beneficiary does not survive the testator - there will be an asset or money not dealt with unless a proper provision is made.
    Disputing A Will