THE WHOLE TRUTH AND NOTHING BUT

If you went to the doctor because of a pain on your right side, would you tell the doctor that the pain was emanating from your left side? Of course not, but there are times when a client will not tell their lawyer everything. This can be extremely detrimental to your case: recently, a client withheld some information which was very damaging to their claim and, because this was a type of litigation that did not permit discovery, the damaging evidence was introduced by the other side at the trial and I had to seek an adjournment in order to prepare a defense to the damaging evidence, evidence which my client knew of but decided to not tell me of its existence. So the question is: do you tell your attorney everything? Should you? On April 1, 2009 New York replaced all of the existing Disciplinary Rules and Definitions in the New York Code of Professional Responsibility with the New York Rules of Professional Conduct. Under DR 7-102(B)(1) of the old Code of Professional Responsibility, if a lawyer learns ("receives information clearly establishing") after the fact that a client has lied to a tribunal, then the lawyer "shall reveal the fraud" to the tribunal, "except when the information is protected as a confidence or secret" -- which it nearly always is, was or will be because disclosing that a client has committed perjury is embarrassing and detrimental to the client. Thus, the exception swallowed the rule, and confidentiality trumped candor to the court in the old Code. In contrast, new Rule 3.3(a) provides that if a lawyer or the lawyer's client has offered evidence to a tribunal and the lawyer later learns ("comes to know") that the evidence is false, the lawyer "shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." New Rule 3.3(c) makes crystal clear that the disclosure duty applies "even if" the information that the lawyer discloses is protected by the confidentiality rule (Rule 1.6). This is a major change from the old DR 7-102(B)(1) and a real change in the operation of the attorney/client privilege.