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ABA's Model Rules of Professional Conduct
Wednesday, February 07 2007 @ 08:34 PM EST

I don't want you to become unduly bitter or cynical about the legal system. From my email and comments I've seen, I fear that is happening to some of you. I wanted to show you that in fact there are rules of proper conduct for lawyers. Here are the ABA's Model Rules of Professional Conduct.

Here are the three sections that I think will be most meaningful and reassuring to you, the parts about not lying to the court, not deliberately dragging out litigation, and not bringing or maintaining frivolous claims. It will help you to understand that when Magistrate Judge Brooke Wells asked the parties in SCO v. IBM to be courteous to each other and play fair, she had a legal basis, not a pipedream, behind that reminder. There's a rule about that too, being fair to the opposition. Remember her words back in 2005?

The foundation of our legal system depends in part upon the cooperation of adversaries who are required by the civil rules to provide information essential in "secur[ing] the just, speedy, and inexpensive determination of every action." Fed. R. Civ. P.1. Unfortunately though, this standard is often abandoned perhaps in part due to the aggressive adversarial nature of litigation and the large amounts of money involved. Although counsel are expected to protect their client's interests and guard against excessive burdens, such efforts should be tempered with candid cooperation between adversaries. In an ideal world, cooperation would lead to a streamlined discovery process whereby the fact finder could quickly resolve the ultimate issues found in disputes. Such a situation promotes efficient disposition of litigation, which is generally a good thing. Doubtless as the parties are well aware, all cases do not exist in the ideal world. However, this does not excuse counsel from striving to meet this standard.

There is a standard. So, this is Legal True North. If as we go along you notice something leaning to the left or the right (or straight down), you should know it's not the ideal. Let's look at one of the rules in full, the one about not lying to the court.

Here's Rule 3.3:

Rule 3.3 Candor Toward The Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or 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; or

(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 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 tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

She was referencing the Federal Rules of Civil Procedure, specifically the very first one. Those are actual rules, not model rules. Can anything happen to a lawyer who blatantly violates the rules? Of course, although it's rare. But when it happens, it's usually at the very end of the litigation. I just want you to know that your instincts are right. The law is supposed to be respectfully and honorably practiced. Otherwise, what is law for?

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