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Rules of conduct and client care for lawyers say in Chapter 13:

The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.

(This is in New Zealand, but I assume there will be a similar rule in many other countries).

What difference does that rule make? If it did not exist, what would have happened?

Specifically, I am interested in the contrast with self-represented non-lawyer litigants who, obviously, do not have that duty of fidelity. Both lawyers and non-lawyers are allowed to litigate and are supposed to be treated equally by the courts — only their points of law should matter who wins, not their status/duties to the court. If so, why have the duty at all? Conversely, if the duty is required, why allow to litigate without signing to it?

And one related question: what are examples of "overriding" — when a lawyer has to be not entirely honest to his client because he first has to be honest to the court?

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  • Related post: law.stackexchange.com/questions/7965/… – Rock Ape Mar 7 at 18:04
  • "I assume there will be a similar rule in many other countries" NZ's obligations to the court are more significant than in many countries, but not more than in all systems (military justice, e.g. has even greater obligations to the tribunal). – ohwilleke Mar 9 at 1:01
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When it comes to the obligation to tell the truth, there isn't all that much difference between a lawyer's obligations and those of a pro se litigant -- at least as far objective truth.

But not every question has a single truthful answer. Professionalism rules impose some higher standards on lawyers in cases that are a bit murkier than just asking, "Were you at the Capitol on January 6?"

In the United States, the analogous rule lays out some bright-line rules.

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.

Subsection (a)(1) gives a good example of where the duties of honesty diverge for lawyers and pro se parties. If a plaintiff tells the court honestly -- but mistakenly -- that he lost $1 million in profits, but later discovers that he only lost $100,000, his lawyer has a clear obligation to correct that statement for the court; the pro se plaintiff's obligation is not clear.

Similarly, if a plaintiff tells the court that he is entitled to those lost profits if he can prove elements A, B, C, and D, but later learns that the Supreme Court has also imposed a requirement that he prove E, the lawyer has an obligation to notify the court of this development; the pro se plaintiff does not.

On the "overriding" language: I don't read it as generally having any effect on a lawyer's duty to be honest to his client. Instead, it means that the lawyer's duty to the court overrides the lawyer's duty to the client.

In either of the above hypotheticals, for example, the lawyer acted honestly and ethically in presenting his evidence and argument, even though his statements turned out to be false. Correcting the record on either point would reduce or possibly eliminate his client's likely recovery and be against his client's best interests.

Once the lawyer discovers the error, he is therefore faced with a conflict of interest: he has a duty to act in his client's best interest, but he also has a duty of honesty to the court. Chapter 13 says that his duty to the court overrides his duty to his client.

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As I understand it, the point is that a lawyer is not allowed to mislead the court, or to allow their client to mislead the court. So if the client tells the lawyer "yes, I was part of the bank robbery" the lawyer cannot then let the client go on oath and deny being part of the bank robbery. If the client tries to do this the lawyer must stand up and say "I'm sorry, but my client is lying". In cases that involve discovery they also have a duty to disclose all the required material, even if it damages their client's case.

Without this rule a lawyer could advise their client exactly what lies to tell in order to cast doubt on the prosecution case, or conceal documents in discovery, or lots of other things, without consequences. Of course an unscrupulous lawyer could still do this, but the rule you quote means that they are putting their careers on the line if they do this.

Of course there can be ways around this. The lawyer can tell the client not to tell the lawyer about their guilt, as mere suspicion that your client is lying is not an ethical issue. If the lawyer does learn problematic facts then the lawyer can be replaced by a fresh lawyer who does not have the guilty knowledge. These tactics are obviously sailing close to the wind, but I've no doubt they get used.

As you say, pro-se litigants don't have that duty; they merely have the same duty as anyone else to tell the truth when testifying on oath or making declarations under penalty of perjury. Since they are representing themselves the possibility of their lawyer doing the lying for them does not arise.

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  • This doesn't add up for me. In the absence of the rule, could a lawyer really advise a client to lie to the court? Would he not be criminally liable for suborning perjury? – bdb484 Mar 8 at 2:17
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Justice system first; client second

The primary duty of a lawyer in court is to ensure that the justice system follows the rules, not that their client wins.

For all lawyers it means:

  • not arguing facts they know aren’t true
  • not concealing or misrepresenting evidence
  • not allowing witnesses to perjure themselves
  • cooperating with the court and their opponents

Further, for criminal cases:-

For prosecutors, that means only bringing charges that:

  • they believe they can prove,
  • they, themselves, believe the defendant is guilty of
  • that serve the interests of justice (e.g. it might not serve the interests of justice to prosecute a parent who ran over and killed their own child accidentally)

For defence lawyers, that means:

  • not entering a plea that they know is false
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    I would agree that is true for prosecutors, but not for lawyers generally. Lawyers generally must not breach narrowly drawn obligations to the court but primarily put client ahead of justice. – ohwilleke Mar 9 at 0:59
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    @ohwilleke I was using a rather narrow concept of justice - is this edit better? – Dale M Mar 9 at 1:54
  • Now I don't get how a lawyer could affect what the justice system does, let alone whether it follows any rules. – Greendrake Mar 9 at 11:46

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