As attorneys, we must balance our duties and responsibilities between protecting our clients and following our own ethical obligations. The
Supreme Court Rules provide guidance but even with that direction, the practical application can be difficult.
The Ethical Landscape
While most communication with a client is protected by the well-known attorney-client privilege under Supreme Court Rule (SCR) 20:1.6, it does not allow for perpetuating certain conduct, including lying to the tribunal.
Wisconsin attorneys are bound by a duty of candor to the court as required by SCR 20:3.3. This means that if a client provides false information, it may jeopardize the attorney’s ability to continue working with the client. The rule requires attorneys to provide truthful information to the court and uphold the integrity of the legal system.
Tips to Build Trust and Honesty with Your Client
Clear communication is key for many parts of an attorney’s work, and ensuring both sides of the relationship understand the boundaries is a part of that.
Building trust early can help reduce the dishonesty that may spring from discomfort with a subject or shame about an experience.1 Part of building that trust should also include defining terms and ensuring that both parties understand what to expect in the representation and communication throughout the relationship, including the impact of dishonesty.
An early conversation before any suspected dishonesty is best, to lay out how important it is to be honest with an attorney. If you suspect or know your client is lying to you, that is also a good time to have a conversation about the potential impact of dishonesty.
Part of this responsibility is also to verify information. When possible, work with your client to obtain relevant documents and third-party information, and do your own research to ensure that you are not unwittingly being untruthful as well.
The investigation process, both independent and with the client, can help you discover if you are being lied to and learn whether you need to clarify with the client what you have found. Clients may have forgotten things, may not realize the impact of a seemingly small lie, or they may actually be trying to pull one over on you. Building trust, as noted above, can help make the conversation about your findings after the investigation more palatable.
Where to Find Professional Advice
Wisconsin also has a great community of legal practitioners and slate of resources.
While it is important to maintain confidentiality, you may consult colleagues or mentors under SRC 20:1.7. If you are unsure of your obligations or what the path forward should be, the
State Bar of Wisconsin Ethics Hotline is a great resource to talk through your obligations.
Newer attorneys may want to engage in the State Bar mentorship program
Ready. Set. Practice. to connect with a mentor who can work through problems with them.
And for those who are members of the
State Bar sections and divisions, there are great elists that can help connect you with a broad network of attorneys willing to help.
Don’t forget to explore the Wisconsin Law Library’s section on
Legal Ethics & Professional Conduct.
Handling the Lie
Sometimes, no matter how many conversations we have with clients about the importance of being truthful, the client insists they will perpetuate the lie, even under oath.
If the attorney becomes aware of a material misstatement made to the tribunal, the attorney must rectify any false statements made.
In this case, or if you know your client intends to lie, you may need to evaluate continued representation and possibly withdraw from the case in accordance with Supreme Court Rule 20:1.6. While withdrawal is not the outcome anyone wants when they enter a representation agreement with a client, sometimes it is necessary to comply with the ethical rules.
If you do not withdraw or have not been allowed to do so, you may need to prepare to move forward with the case. Explaining to the client that you must alert the court if you know what they say is untrue may help dissuade the lie or result in the client firing you from the case.
During representation, you can stick to only eliciting information from the client about what you do know to be true and avoid presenting an opening for the lie; this approach has risks, as an adverse party or counsel or even the judge may ask the very question you are avoiding.
Dishonest clients add unnecessary complication to legal proceedings, but using the available resources and falling back on the Supreme Court Rules can help untangle the web. Open and clear communication with clients and an effort to verify information can help you move forward and continue assisting those who need your services.
This article was originally published on the State Bar of Wisconsin’s
Public Interest Law Section Blog. Visit the State Bar
sections or the
Public Interest Law Section web pages to learn more about the benefits of section membership.
1 Client motivation can be a key to preventing dishonesty from impacting the attorney-client relationship, but it is a complicated subject and invites a look into trauma-informed lawyering, which is too in-depth for this blog.