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.

Lawyer argues case as Thomas Jefferson, loses anyway.

Despite his brave but bumbling efforts to defend himself while in costume, Dennis Hawver was disbarred by the Kansas Supreme Court for “inexplicable incompetence” during a 2005 capital murder trial.

Article (with video) here (via the Lawyerist). 

Former Zeeland attorney spent almost all $900,000 of missing client funds

Of the $900,000 that former Zeeland attorney Kenneth Hoesch took from clients’ estate trusts, only a relative pittance has been found.

He had $2,065.57 in a client trust account at Macatawa Bank and had a coin collection, appraised at $3,388, in a safety-deposit box at Huntington Bank in Zeeland.

Article here. (via mlive.com)

Commonly violated legal ethics rules.

According to this article, legal ethics rules that are commonly violated are the duty of competence, diligence, and conflicts of interest.

Article here (via the lawyerist).

Does your law practice need updating? Technology concerns?

Do you have a tendency to be slow to change your ways? Have you resisted changing due to technological issues? It's not just a quaint thing, for lawyers to resist change & act in Luddite-like ways: instead, it's possible that a lawyer who fails to change due to technology could be facing ethical violations.

Article here. 

The US Supreme Court doesn't necessarily care if your lawyer is unethical

A case from Michigan about what effective representation of counsel means was heard at the US Supreme Court. It turns out, if your lawyer does unethical things doesn't mean they were ineffective as your legal representative.

Article here. (State Bar of Michigan blog)

and here.(from the Atlantic)

.... from the Atlantic article :

"This is what the right to counsel has come to in America. Your lawyer may have violated ethical rules; he may have failed to timely consult with other attorneys; he may have not adequately investigated your case; he may have given you bad advice that leads you to withdraw a guilty plea. And yet the legal standards imposed by the Supreme Court declare that you still aren't entitled to any meaningful relief by the courts. In law school, they call this "a right without a remedy." In real life, it's called injustice."

What does the prosecution have to share with defendants?

According to the rules of professional conduct, prosecutors have an ethical duty to share information with the defendant that might possibly be exculpatory - in other words, the evidence could prove that the defendant didn't do the charged crime.
But apparently this is news to prosecutors in North Carolina, who are defending their decision not to turn over exculpatory evidence for a man who spent 17 years in prison. Article here.