What to Do When Your Client Does the Unexpected | Practical Law

What to Do When Your Client Does the Unexpected | Practical Law

Clients are often unpredictable, and their behavior has repercussions. This Update discusses what to do when your client's behavior jeopardizes the case or compromises your ethical obligations.

What to Do When Your Client Does the Unexpected

Practical Law Legal Update 3-570-1042 (Approx. 4 pages)

What to Do When Your Client Does the Unexpected

by Practical Law Litigation
Published on 10 Jun 2014 • USA (National/Federal)
Clients are often unpredictable, and their behavior has repercussions. This Update discusses what to do when your client's behavior jeopardizes the case or compromises your ethical obligations.
Litigating a case often involves navigating a minefield that is full of bad facts, unfavorable law and difficult opposing counsel. Litigators anticipate and are trained to handle these issues. However, what should counsel do when their client's unexpected behavior jeopardizes the case or compromises counsel's ethics?
A major law firm recently faced this situation. The firm moved to withdraw as counsel after its client allegedly admitted post-trial that it had both altered and fabricated documents that were offered as exhibits during trial.
In its motion, the firm claimed that on learning about the allegedly falsified evidence, it advised the client it could no longer represent it, and in accordance with the applicable local disciplinary rules of professional conduct, the firm would disclose the purported fraud to the court if the client failed to do so first (see LBDS Holding Co., LLC, v. ISOL Tech. Inc., Civ. No. 11-cv-00428, Motion to Withdraw).
The client did not object to the firm's withdrawal. However, it did object to the firm's allegations of fraud, asserting that the allegations violated the attorney-client privilege (see LBDS Holding Co., LLC v. ISOL Tech. Inc., Civ. No. 11-cv-00428, Plaintiff's Objection to Defendants Emergency Motion to Produce Testimony and Exhibits and to Inclusion of Alleged Company Representatives Statements in Counsel's Motion to Withdraw). For more information about the scope of attorney-client privilege in these circumstances, see Practice Note, Attorney-Client Privilege: Overview (Federal).
Other examples of serious and problematic client behavior include:
  • Giving inaccurate testimony.
  • Giving false testimony.
  • Destroying unfavorable evidence.
When confronted with these situations, counsel should always first consult the relevant rules of professional conduct for guidance (see, for example, N.Y. Rules of Prof'l Conduct and Ca. Rules of Prof'l Conduct). However, if the rules are silent or there is not time to check them (for example, at a deposition), remember the following:
  • If counsel suspect that the client has hidden or may destroy unfavorable evidence, counsel should remind the witness that:
    • every case has bad facts;
    • destroying evidence could lead to severe sanctions (for more information on sanctions a court may impose when evidence is destroyed, see Spoliation Sanctions by US Circuit Court Chart); and
    • hiding or disposing of unfavorable evidence are not effective litigation strategies.
  • If a client gives inaccurate testimony at a deposition, counsel should wait for a break and:
    • review with the witness the deposing attorney's question and the witness's answer;
    • try to refresh the witness's recollection with testimony from other witnesses or documents;
    • confer with the witness to determine the accurate response to the deposition question; and
    • instruct the witness to clarify her response to the question on the record when the deposition resumes.
  • If counsel know that the witness provided false testimony during a deposition, they should remind the witness that:
    • every case has bad facts;
    • falsely testifying under oath and the penalty of perjury is a crime;
    • a court may sanction a party who commits perjury during a deposition by imposing monetary fines or dismissing a party's claims or defenses altogether;
    • lying under oath in a deposition is not an effective litigation strategy;
    • most ethics rules require attorneys to take steps to correct testimony that an attorney knows to be false, such as by withdrawing from the case or disclosing the false testimony to the court (see, for example, Model Rules of Prof'l Conduct R. 3.3); and
    • the witness should clarify any incorrect testimony on the record when the deposition continues. A witness who clarifies her testimony after a break may be asked by the deposing attorney about the substance of her conversations with her attorney during the break. Therefore, the defending attorney must know the jurisdiction's local rules and case law regarding whether the conversations are considered privileged or are discoverable before addressing the issue with the witness during a break in the deposition.
For more information about how to deal with unexpected situations at a deposition, see Practice Note, Depositions: Handling Unexpected Situations at a Deposition (Federal).