December 2012 Bar Bulletin
 
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December 2012 Bar Bulletin

Ethics Rules Affecting the Development of Facts in Litigation

By Scott M. Missall

 

Lawyers hold a special place in society and are one of the traditional learned professions. As professionals, we are obligated in Washington to abide by the Rules of Professional Conduct (RPCs or Rules).1 As lawyers, we must respect the rule of law.

The first paragraphs of the Funda­mental Principles of Professional Con­duct explain why:

The continued existence of a free and democratic society depends upon the recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual and the capacity through reason for enlightened self-government....

Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.2

There is inherent tension, of course, between the role of lawyers as officers of the court and guardians of the law on the one hand,3 and as zealous representatives4 of their clients on the other. Nonetheless, a lawyer must always comply with the Rules.

Thus, RPC 8.4, Misconduct, states, "It is professional misconduct for a lawyer to ... violate or attempt to violate the Rules of Professional Conduct ... or do so through the acts of another." And RPC 1.3, Diligence (Comment [1]), states that a lawyer should take "whatever lawful and ethical measures are required to vindicate a client's cause or endeavor."

Rules Governing the Development of Facts

Joe Friday, earnest sergeant of "Dragnet" fame, was fond of saying, "All we want are the facts, ma'am."5 Most representations start likewise - the lawyer trying to determine what the facts and issues are, and what the client's concerns are, so that a legal strategy can be developed.


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