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The Ethical Requirements of Candor and Zealous Representation
As advocates, we have the ethical duty to zealously represent our clients. ABA Model Rule 1.3 By this column I am not suggesting otherwise. It is entirely permissible, and in fact required, that we present our facts and position in the most persuasive way possible. This may involve how we order the facts to be most persuasive. It may involve us using the best word choice in terms of adjectives and adverbs to describe those facts.
However, when we have a duty to disclose facts or submit our legal arguments zealous representation does not allow us to cross certain lines. Crossing these lines can have severe and lasting consequences for the attorneys who violate these ethical duties.
Over the past 45 years I have given talks on advocacy hundreds of times. Many CLE providers want a defined hour of ethics…at the end of the day. This is a mistake. Ethics should not be an afterthought. It should not be relegated to the end of the day when the audience is wondering, “When is he going to stop talking.” I build “ethical moments” into the presentation on advocacy. Why? Ethics equals persuasion.
One CLE provider (which will remain nameless) did not trust that my “ethical moments” truly added up to an hour. They sent a staff member. He sat in the front row. He brought a stopwatch. I would turn to him and say, “Herb (not his real name) this is an ethical moment.” He would hit the stopwatch. During the day long presentation I would turn to him and say “Herb, how’m I doin’?” and Herb would announce the cumulative time. Fortunately, Herb had a sense of humor. The audience loved the back and forth.
In addition to speaking about advocacy I have done advocacy skills training since 1986, mainly through The National Institute for Trial Advocacy (NITA). Many times young attorneys ask for career advice from a judge’s perspective.
I tell them that the shortest distance from the doors of their law school to earning the respect of judges is a strict adherence to the rule requiring candor to the court. I also add that if they are weighing zealous representation versus candor, most disciplinary decisions I have read say candor wins.
Prologue
Since I live in New York, I follow stories on the administration's efforts to end congestion pricing in areas of Manhattan. In that case a confidential, internal client memo was inadvertently filed and then withdrawn.
The memo was a detailed...and very candid...assessment of the strength of the government's case to end congestion pricing. It also suggested another route for the client to achieve the same goal through another means. In my opinion, it more than fulfilled the ethical duty of candor to the client as an Advisor. ABA Model Rule 2.1 Advisor-See Comment
The U.S. Department of Transportation removed the attorneys from the case. The candor in their memo provides me with a launching pad to discuss candor to the court.
Candor to the Court
If you’re asking a judge to go out on a limb with you, just admit it. I paid attention when an attorney said, “Your honor, we know this court has a long-standing practice on this issue. We are asking for an exception to your normal practice. We know this court will give us the opportunity to be heard and this case is different for these reasons…” We sit up and listen when an attorney begins an argument this way. We admire frankness.
Too often I find that attorneys construe zealous representation to mean urging each and every argument, regardless of the merit, as equal. They waste time and lose the power of primacy when they argue the lesser points first. Quantity does not equal quality. Yes, you want to preserve all points should there be an appeal. But that does not mean that you should waste the court's time, the client's time and your time on putting shaky points at the beginning.
You'll want to begin strong and end strong. Put the lesser points in the middle. If you start with a weak point you lose credibility. If you do not tell the court the truth, shade the truth or omit crucial facts you lose all credibility.
Candor on the Facts
I recently did a podcast for NITA. The title was Emergency Advocacy. It addressed those cases such as injunctions, evictions, bail hearings, replevin and immigration cases. Time is of the essence in many of these cases. If you are seeking relief ex parte, ABA Model Rule 3.3 (d) requires you to inform the court of “all material facts” known to you…including facts that are adverse to your position.
In these cases, judges will ask a lot of questions…most, if not all, on the record. If on down the road the judge or opposing counsel find out that you were not candid, shaded the truth, did not reveal material facts or flat out lied, the credibility you have built up to that point in your career can vanish in an instant.
One case or one client can make your career. However, the reverse is also very true. No one case is worth your career. No one client is worth your career. Judges talk. Judges talk about the attorneys they can trust. They especially talk about the attorneys they cannot trust. Trust me on this. I sat through judges’ meetings for 20 years.
Candor on the Law
ABA Model Rule 3.3 (a)(2) requires disclosing authority in the controlling jurisdiction adverse to our position and not cited by our opponent. It is an ethical requirement. It is also persuasive.
It is impressive when counsel says, “Judge, that is our position. However, there are two cases that are arguably against us. Here they are, but we feel they are distinguishable for the reasons we stated. And now let me turn to the two cases in our favor.” Citing and addressing contrary authority conveys you are not concerned about it. You cite it, distinguish it and move on to your cases.
The Consequences
Ethical missteps can harm both your client and your career. In egregious cases it can result in the client’s case being dismissed. Short of that, if the judge cannot trust the attorney on the facts or the law that attorney will have an uphill battle on rulings down the road.
Client Consequences
Toward the end of my time on the bench I sanctioned an attorney for unprofessional conduct during a deposition. I ordered that he pay the fees up to that point incurred by the other side. To list all his transgressions could fill another newsletter. His speaking objections sometimes exceeded the length of the question asked or the answer given.
I could have dismissed the case as a sanction. However, it appeared to me that the client was taken aback by his behavior at the deposition. Her case continued…but the arbitration was handled by another attorney. Ethical lapses can result in case dismissals, evidence or claims barred and malpractice claims.
Professional Consequences
Paraphrasing the legendary basketball coach, John Wooden, “Character is revealed by what one does when no one is watching.” In our profession, everyone is watching – our client, counsel on the other side and the court. Court and counsel have an obligation to report misconduct under ABA Model Rule 8.3.
Fortunately, I only had to report two attorneys in the 20 years I was on the bench. They gave me no other choice. Ethical lapses can result in disbarment, suspension, claims of malpractice and, in some states, even criminal prosecution.
The Cure
It’s 2:00 in the morning. You’re awake. You’re questioning yourself. Did you go over the line? Here are three suggestions. First, find a colleague with an impeccable record and run it by her. What does she think? Second, many bar associations have ethical hotlines that are confidential and can give you guidance. ABA Model Rule 1.6 (b)(4) allows lawyers to make these inquiries.
Third, fix it. Back to the Titanic. Expert testimony at the inquiry suggested that had they hit the iceberg head on, the ship may not have sunk. By trying to avoid the problem…by turning away from the problem…more watertight compartments were exposed to slicing by the iceberg.
In emergency rooms, the quicker the better, in most cases. In courtrooms it may be a prompt supplement to discovery or a quick call to opposing counsel. A timely conference with the judge may help. If those avenues are long past, you may have to self-report. The longer the wound goes untreated the more likely infection will set in. As was often said after Watergate, “It’s not the crime, it’s the coverup.”
Epilogue
The nine justices of the U.S. Supreme Court did something unusual last month. They gave a standing ovation for an attorney appearing before them. The ovation on April 23rd was for Edwin S. Kneedler, a deputy solicitor general, who was leaving after delivering his 160th argument on behalf of the federal government.
Here are selected excerpts from an article reporting the event:
Noel J. Francisco, the solicitor general in the first Trump administration, said that Mr. Kneedler was “not just a font of knowledge, but of wisdom.”
Seth P. Waxman, who was solicitor general in the Clinton administration, said Mr. Kneedler was the opposite of a partisan. 'In all the years that I worked with Ed in the Justice Department, I did not know his politics,' Mr. Waxman said.
Mr. Shanmugam said Mr. Kneedler’s loyalty was to the rule of law. 'He would much rather get the law right at the risk of losing,' Mr. Shanmugam said, 'than win at the cost of misrepresenting the law.' (emphasis added)
Postscript
I returned recently from a trip overseas and my first task was to finish this newsletter. Although not directly related to the point of this newsletter, I found these passages in Murrow's testimony interesting given that over a half a century has passed since he testified. I thank Adam Yaggy, who wrote for our Fall 2024 newsletter, for his assistance in researching Murrow's testimony before Congress. His complete testimony can be found here on our website.
In commenting on criticism of the USIA by Communist news sources, Murrow said:
We consider it a compliment, an evidence of effectiveness. But it is very difficult to measure success in our business. No computer clicks, no cash register rings when a man changes his mind or opts for freedom. And, as I have indicated, ours is only one of many American voices. The image of America abroad it molded by countless sources, among them the 4 million American tourists who go overseas every year; a million U.S. troops and dependents abroad; our 33,000 missionaries, Hollywood movies seen by 150 million foreigners every week; American magazines, newspapers, and TV shows; and letters from the 22 million immigrants who have come to our shores since 1900.
And above all, it is what we do-not what we say-that has the greatest impact overseas. USIA can explain, interpret, clarify, synthesize, and project, but we cannot change the unchangeable or do the undoable. The United States of America cannot and should not try to please everyone on this planet; we have, and will always have, some policies that are unpalatable to some people. We are, then, and properly so, prisoners of policy.
We should understand also that USIA cannot by itself defeat communism, solve the Kashmir dispute, resolve the Arab-Israel quarrel, throw Castro out of Cuba, protect the freedom of Berlin, or defeat the Viet Cong. But given intelligent and effective American policies, supported by Congress and the American people, we can make an important contribution to the achievement of our objectives. In my judgment, we are today, making such a contribution.
Resources:
Paula Hannaford-Agor, Robert C. LaFountain, and Shauna Strickland, Caseload Highlights, National Center for State Courts, Vol. 11, No. 3, June 2005
Stefanos Chen and Winnie Hu, Can Trump Still Kill Congestion Pricing After U.S. Lawyers Showed Doubt?, New York Times, April 26, 2025
Stefanos Chen and Benjamin Weiser, U.S. Sidelines Lawyers Who Doubted Their Own Case on Congestion Pricing, New York Times, April 24, 2025
ABA Model Rule 1.3 Diligence
ABA Model Rule 2.1 Advisor-Comment
Hon. Mark A. Drummond (ret.), Emergency Advocacy, NITA, Podcast, Episode 65 (2025)
ABA Model Rule 3.3 Candor Toward the Tribunal
ABA Model Rule 1.6 Confidentiality of Client Information
ABA Model Rule 8.3 Reporting Professional Misconduct
Alex B. Long, Attorney Deceit Statutes: Promoting Professionalism Through Criminal Prosecutions and Treble Damages, 44 UC Davis Law Review 413 (2010)
Debra Cassens Weiss, Lawyer may be sued under attorney deceit statute for lawsuit misrepresentation, federal judge says, ABA Journal, Daily News, March 15, 2017
British Wreck Commissioner’s Inquiry, Testimony of Edward Wilding, Naval Architect-Harland & Wolff, Day 19 at 20271, June 7, 1912
Adam Liptak, A 'Citizen Lawyer' Gets a Standing Ovation at the Supreme Court,
New York Times, Sidebar, April 28, 2025
Testimony of Edward R. Murrow before Congressional Subcommittee, March 28, 1963
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