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Who's More Ethical: the Lawyer With the Client Who Lied or the Lawyer Who Withheld Evidence of the Lie?

Mike Cernovich stimulates an interesting discussion in this post. Specifically, he asks, "When you are a defense counsel in a civil case who discovers that a plaintiffs' claim is fraudulent, do you have a duty to disclose this to the trial court?" Cernovich's question arises out of this article, Citing Fraud, Judge Tosses Case After Video Shows 'Paralyzed' Woman Walking at Law.com (4/26/07), which reports on a case where lawyers defending a medical malpractice case obtained video evidence that a woman claiming to have been paralyzed through a doctor's negligence could walk. The defense attorneys obtained the tape in April 2005 but didn't disclose it until January 2007, when they moved to dismiss the case for fraud. The plaintiffs lawyers opposed the motion, but also complained that if the defendants had shown the video earlier, they wouldn't have invested 21 months worth of litigation time, cost, doctors fees and judicial resources. In response, defendants claim that they wanted to gather additional evidence to ensure that they would prevail on a motion to dismiss based on fraud.

Cernovich sees nothing wrong with the defendants' strategy. He writes:

So long as the defense lawyers disclosed their finding to the client (thus allowing the client to make to decision whether to incur further legal fees defending the action), I think they made the right choice.  By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away.

In my view, neither attorney acted particularly well, at least based on the information provided in the report. I'm not sure how plaintiffs could have spent 21 months on a case and not realized that their client was not really paralyzed. Didn't they review her doctors' reports or medical records? Didn't they speak with caregivers and other witnesses, at least some of whom would have observed her walking around? 

At the same time, the defendants didn't act much more honorably. Forcing opposing lawyers to invest time and money on a case involving a client who wasn't injured as badly as she claimed just to gain a strategic advantage is irresponsible. Had the defense lawyers notified opposing counsel about the clients' fraud, the lawyers might have discharged the client themselves. The parties may have agreed to a voluntary dismissal. Or they might have arrived at a lowball settlement that would have cost the defendants less than having their firm defend a case for 21 months, when they intended to dismiss it anyway.

The comment section is open, so please share your thoughts.

Posted by Carolyn Elefant on April 26, 2007 at 07:18 PM | Permalink | Comments (10)

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