ETHICS QUESTION OF THE MONTH
This content is generated by the Texas Center for Legal Ethics and is for informational purposes only. Look for the reasoning behind the answers at legalethicstexas.com.
Lawyer A represents Client X in a family law case.
Client X has told Lawyer A he has struggled with substance abuse and
continues to use cocaine occasionally.
Client X’s wife had similar substance abuse issues, but she appears to be in sustained recovery. Client X wants primary custody and appears reconciled to admitting his occasional cocaine use and seeking treatment.
The wife’s lawyer takes Client X’s deposition and asks him if he still uses cocaine. Client X denies any cocaine use since the couple separated. Lawyer A asks no questions at the deposition, but later confronts his client about his denial of current drug use. Client X promises not to lie about his cocaine use again. Lawyer A does nothing further, and Client X does not correct his deposition testimony.
At trial, Lawyer A doesn’t raise cocaine use, but does ask Client X to generally tell the jury why he believes that he is a fit parent. Lawyer A assumes that Client X will avoid talking about drug use, but Client X again says he has not used anything since the couple’s breakup. Hoping that his client won’t continue to perjure himself, Lawyer A drops the subject and quickly wraps up his direct examination.
On cross-examination, opposing counsel is ready to pounce but doesn’t have any impeachment evidence that Client X is lying. He can’t shake Client X’s repeated denials of drug use since the couple’s separation.
The jury awards primary custody to Client X at the end of the first week of trial. The trial will continue the following week with the property division tried to the court without a jury. Over the weekend, Lawyer A confronts his client and insists that he not further perjure himself during the second week.
Which is Lawyer A’s best course of action?
A. Lawyer A has acted appropriately in preserving what he learned from privileged conversations with Client X and should do nothing to undermine the attorney-client relationship.
B. Lawyer A should withdraw before the second week of trial so that he can avoid disclosing his client’s perjury when court resumes.
C. Lawyer A cannot withdraw, but does not need to take further action as long as he doesn’t affirmatively encourage Client X to lie.
D. Lawyer A cannot withdraw and must take steps to address his client’s lies, including disclosure to the court of the true facts.
The answer is D. For the reasoning behind the answer, go to legalethicstexas.com.TBJ
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The Texas Center for Legal Ethics was created by three former chief justices of the Supreme Court of Texas to educate lawyers about ethics and professionalism. Lawyers can access the Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed, and a variety of other online ethics resources by computer or smart device at legalethicstexas.com.
The information contained in Ethics Question of the Month is intended to illustrate an ethics issue of general interest in the Texas legal community; it is not intended to provide ethics advice that applies regardless of particular facts. For specific legal ethics advice, readers are urged to consult the Texas Disciplinary Rules of Professional Conduct (including the official comments) and other authorities and/or a qualified legal ethics adviser.