Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyMedium
A lawyer represents a plaintiff in a civil lawsuit. During a settlement conference, the opposing counsel makes a factual assertion that the plaintiff's lawyer knows to be materially false based on documented evidence in their possession. The lawyer's client is present and instructs the lawyer to remain silent to gain a tactical advantage in negotiations. What is the lawyer's ethical obligation in this situation?
- AThe lawyer must remain silent, as their primary duty is to zealously represent the client's interests, especially when instructed.
- BThe lawyer must correct the opposing counsel's false statement, even if it disadvantages the client in the negotiation.
- CThe lawyer may remain silent, but only if the false statement is not directly made to the tribunal.
- DThe lawyer should discreetly inform the client that they cannot participate in the misrepresentation but does not need to actively correct it.
Show answer & explanationAnswer & explanation
Correct answer: B. The lawyer must correct the opposing counsel's false statement, even if it disadvantages the client in the negotiation.
A lawyer has a duty of candor toward the tribunal, which extends to settlement conferences when the tribunal is present. Assisting in a client's fraud or misrepresentation violates this duty.
Why the other options are wrong
- A. Remaining silent when knowing a material fact is being misrepresented to the tribunal (or in a context where the tribunal relies on such representations) is a violation of candor.
- C. Even if not directly to the tribunal, participation in a misrepresentation that the tribunal may rely upon through a settlement conference still implicates the duty of candor.
- D. Simply informing the client is insufficient; the lawyer must take action to prevent or rectify the misrepresentation.
Candor to Tribunal (Settlement)
A lawyer must not knowingly make a false statement of material fact or law to a tribunal, or fail to correct a false statement of material fact or law previously made, even in settlement conferences.
- Duty applies even when client instructs silence.
- Extends to settlement conferences where tribunal is involved.
- Prevents lawyers from assisting in client fraud or misrepresentation.
Memory trick: Truthful Tribunals Ensure Just Outcomes.