A lawyer represents a client in a civil case where a critical piece of evidence is a document that the lawyer reasonably believes is genuine but cannot definitively prove its authenticity without the testimony of a third-party witness who is unavailable. The opposing counsel challenges the document's authenticity. What is the lawyer's ethical obligation regarding the document?
- AThe lawyer must inform the court ex parte about the authentication issue.
- BThe lawyer must withdraw the document, as its authenticity cannot be definitively proven.
- CThe lawyer may offer the document into evidence, explaining the efforts made to authenticate it and the unavailability of the witness.
- DThe lawyer may offer the document and argue for its authenticity without disclosing the witness's unavailability.
Show answer & explanationAnswer & explanation
Correct answer: C. The lawyer may offer the document into evidence, explaining the efforts made to authenticate it and the unavailability of the witness.
A lawyer may offer evidence that they reasonably believe is relevant and admissible, even if its authenticity is challenged, provided they have a good faith basis for offering it. The lawyer should disclose any known limitations or challenges to the evidence, such as the unavailability of a key authentication witness, to the court and opposing counsel, allowing the tribunal to determine its admissibility and weight.
Why the other options are wrong
- A. Ex parte communication with the court about evidentiary issues is generally improper and violates fairness to opposing counsel.
- B. Withdrawal is unnecessary if the lawyer has a reasonable belief in authenticity and can present arguments for admissibility.
- D. Failing to disclose the unavailability of a key authentication witness, while arguing for authenticity, could be seen as a lack of candor, especially if it misleads the tribunal.
Candor Regarding Evidence
A lawyer shall not knowingly offer evidence that the lawyer knows to be false. If a lawyer has reason to believe evidence is false, they must take reasonable remedial measures.
- Do not offer evidence known to be false.
- If reasonable belief of falsity, may refuse to offer.
- Duty to disclose adverse legal authority.
Memory trick: Offer with belief, disclose the doubt, let the court sort it out.