Here’s one for the lawyers – is the Local Government Commission a “tribunal” within the scope of Rule 3.3 of the lawyers’ Rules of Professional Responsibility, which requires “candor toward the tribunal”? And if it is, then how does the “duty of candor” manifest in those situations?
What’s a tribunal?
When we first learn about this rule it’s in the context of a court proceeding. The definition of “tribunal” in Rule 1.0(n), however, is broader, and includes “administrative bodies” or any “neutral agency” that may render a “binding legal judgment directly affecting a party’s interests in a particular matter.” The LGC then is a tribunal, because the LGC has the final say over whether a financing can proceed (subject to appeal, but that’s true of any court).
What then is the duty of candor?
Rule 3.3 imposes this duty. Although “candor” ordinarily connotes honesty and openness in expression (and therefor, more than just saying things that are technically “true”), the actual rule is a prohibition on making false statements, or offering evidence you know to be untrue. This duty is subject to your overriding obligations of loyalty and confidentiality. The “duty of candor” is not an obligation, or even permission, to give a decision maker a “full picture.”
The comments to the rule even say that as a lawyer you can present evidence that you think is probably false – you just can’t present evidence that you know to be false. And you can pretty much take your client’s word for the truth of what they tell you. From the client’s perspective, refusing to present helpful evidence just because you think it’s untrue, or telling the arbiter it might be untrue, violates your duties of loyalty and confidentiality if done without client consent.
So you can’t say anything you know to be untrue. You can’t let your client persist in a statement you know to be untrue. But if your client, or someone else, says something in the course of a proceeding you just “think” is untrue, you can’t pursue the inquiry or draw the tribunal’s attention to the matter. You are required to let it sit there.
How does this relate to discussions with LGC staff?
Most discussion and, if necessary, negotiation about what the LGC will approve is done through staff. The duty of candor is no broader, and the duties of loyalty and confidentiality are no more narrow, when you’re dealing with the LGC staff as opposed to the Commission itself.
So when you are speaking with LGC staff, you still have your own obligation not to make a material statement that you know to be false. If during one of those meetings your client says something you know to be false, you have an obligation to have them clear it up, either contemporaneously or later on. If they won’t, then you have to fix the record and if you get fired, you get fired.
If the client (or someone on behalf of the client, like the FA) says something you think is false is misleading, or even if you’re pretty sure it’s false, then you can certainly, separately, ask them to correct the statement if necessary. But if they stick to the story and you don’t “know” to the contrary, then once again it’s not only your option to let the statements stand, it’s your obligation. You can always withdraw from the representation if you don’t like where things are headed.
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Finally, lawyers should keep in mind that our obligations of loyalty and confidentiality take precedence over our desire to preserve our own credibility and relationship with the LGC staff or any other adjudicator. If you think a client is going down the wrong path, you can encourage them to turn, but you can’t tell the LGC staff about your concerns. Again, you can always withdraw.
(If you’d like to hear the law-school hypothetical I’ve developed out of this issue, let me know!)
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