The Ethical Dilemma of Dealing with
Adverse Evidence
- Zealous Advocacy vs. Duty to the Court
© 2003 by Disability Law Center
Tim Sindelar, Esq.
Disability Law Center
11 Beacon Street # 925
Boston, MA 02108
Tel: (617) 723-8455
Fax: (617) 723-9125
E-mail: tsindelar@dlc-ma.org
Introduction
Lawyers and advocates often face difficult decisions in representing clients before various administrative agencies and courts when they come into possession of evidence that may is unfavorable to the client's claims. Different ethical provisions come into conflict - the obligation to the client may run contrary to an obligation to disclose - either presented by an ethical rules or by a rules or order of the body the matter is before. This became an issue in Social Security cases in the 1980s when an number of Administrative Law Judges entered orders requiring disclosure of all evidence in a lawyer's possession - even when that evidence was contrary to the client's claim of disability.
These matters come up from time to time in assistive technology matters - for example, appeals of denial of prior authorization by the state medicaid agency or a private insurer. A lawyer, in researching a claim, may acquire a report which is in opposition to the elements of the client's claim - or the client may reveal information that would impair their claim. An understanding of the ethical obligations is needed to resolve these dilemmas. The following outline highlights the legal and ethical framework. This is followed by a multi-part hypothetical to explore application of these principals.
I. The Framework of the Model Code and Model Rules
A. Requirement of Zeal
1. Model Code , Canon 7 "A lawyer should represent a client zealously within the bounds of the law."
2. Model Rules of Professional Conduct, Rule 1.3 : "A lawyer shall act with reasonable diligence and promptness in representing a client."
a. The comment on this rule elaborates: "A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf."
B. The Obligation of Confidentiality
1. Model Code, Canon 4 : "A lawyer should preserve the confidences and secrets of a client."
a. According to DR 4-101(A): a "secret refers to other information gained in the professional relationship that the client has requested to be held inviolate where the disclosure of which would be embarrassing or would likely to be detrimental to the client."
b. Model Rules, Rules 1.6:
"(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph(b).
(b) A lawyer may revel information relating to the representation of a client to the extent a lawyer reasonably believes necessary: . . . (4) to comply with other law or a court order."
C. The Duty to Disclose
1. DR-4-101(c)(2) "A lawyer may reveal confidences or secrets when permitted under the Disciplinary Rules or required by law or court order."
2. Ethical Consideration 7-27: "Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce."
3. DR 7-102(A) : In his representation of a client, a lawyer shall not . . . (3) conceal or knowingly fail to disclose that which is required by law to reveal" or " counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent."
4. Rule 3.3#1
a. (a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
. . .
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures , including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes if false.
5. Rule 3.3(b): "A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage , is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, shall take reasonable remedial measure, including, if necessary, disclosure to the tribunal."
6. Rule 3.3(d): "In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse."#2
7. Model
Rule 8.4(c): it is professional misconduct to "
8. Model Rule 4.1(b) a lawyer shall not knowingly "fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule1.6."
II. Applications
A. State and Local Bar Associations
1. Alabama: Opinion of the General Counsel of the State Bar Disciplinary commission - "Rule3.3(d) of the Rules of Professional Conduct of the Alabama State Bar applies to lawyers participating in hearings before a Social Security Administrative Law Judge."
2. Missouri: Opinion from the General Chairman of the Missouri Bar Administration Advisory Committee that :"a lawyer has no duty to defeat his own case. While it would be an ethical violations to violate the provisions of Rule 3.3. of (sic) Rule 4, we do not believe the duty exists to present every shred of evidence known supporting every or all positions possible in litigation."
3. New York County: opinion of the Committee on Professional Ethics of the New York County Lawyers Association (under New York's hybrid of the Model Code and the Model Rules): "if no law independently mandates disclosure, then nothing in the Code requires a lawyer to volunteer evidence - even evidence relevant to the matter in issue - to a tribunal or other person before whom the lawyer appears on behalf of a client. A lawyer's obligation is to present whatever evidence exists which, in the lawyer's professional judgement, best advances the client's interests in the proceeding. That the lawyer may have been given access by the client to other evidence that does not support the client's position does not alter this obligation. To the contrary, if such other evidence is provided by, or upon instructions from, the client, the lawyer may have a duty not to disclose such evidence. DR 4-101(A & (B)(2)." But because the lawyer may not "knowingly make a false statement of fact, use perjured testimony or false evidence , or assist a client in fraudulent conduct. DR 7-102(A0(4),(5) & (7), if the medical evidence indicate that the claim itself is false, "then the lawyer is not free to advance the claim and must withdraw from the representation. DR 1-102(A)(4); DR 2-110(B)(20; DR 7-102(A)(2)."
4. North Carolina: North Carolina State Bar (a Code state): -Revised Proposed Formal Ethics Opinion 1: Rule 3.3(d) does not apply to Social Security hearings: But previous opnion - (before adoption of a version of the Rules) no duty to disclose reports or opinions in a Social Security Administration hearing that attorney believes to be biased and unfair. Prior opinion cites with approval the New York County Lawyers Association opinion. Prior opnion allowed submission of just office notes when attorney receives accompanying letter that states doctor's opinion that not disabled and approved submission of adverse evidence as strategic maneuver (to prevent ALJ from learning of it from another source and to offer explanation of it) with client's consent.
5. Vermont : Vermont State Bar opinion 95-8: "When an attorney representing a client in a Social Security disability benefit hearing obtains medical evidence which is not consistent with his client's claim, such evidence need not be disclosed, provided that :(1) there is reasonable justification for rejecting the opinion and accepting another; and (2) that no direct request for production of such materials has been made by the Administrative Law Judge.
6. Virginia - in response to a complaint from a Social Security Law Judge that an attorney had acted in violation of Virginia Dr 7-105(A) in refusing to comply with an order to submit all documentation in his possession, letter opinion from Assistant Bar counsel states that the attorney's actions do not amount to a violation of the Disciplinary Rule.
B. Relevant Case Law
1. Motions for Default Judgement where critical information was kept from the court : In re Schiff, 542 S.W.2d 771 (Mo. 1976); Hutton v Fisher, 39 F. 2d 913 (3rd Cir. 1966); Singer Co. v. Greever, 82 F.R.D. 1 ( E.D. Tenn. 1977); Dalminter v. Edward, 27 F.R.D. 491 (S.D. Tex. 1961).
2. Non-meritorious Claims: Addison v. Brown, 413 So.2d 1240 (Fl. Dist. Ct. App. 1982); People v. Lewis, 393 N.E.2d 1380 ( Ill. APP. Ct. 1979).
3. Patents Cases: Beckman Instruments v. Chemtronics, 428 F. 2d 555 (5th Cir. 1970); Precision Instrument Mgf. Co. v. Automotive Maintenance, 324 U.S. 806 (1945); Pfizer Co. v. FTC, 401 F. 2d 574 (6th Cir. 1968), cert. denied, 393 U.S. 920(1969).
III. Disclosure Obligations under the Social Security Act
A. 42 U.S.C. § 1320a-8
(a)(1) Any person (including an organization, agency, or other entity) who makes, or causes to be made, a statement or representation of a material fact for use in determining any initial or continuing right to or the amount of-
(A) monthly insurance benefits under title II, or
(B) benefits or payments under title XVI, that the person knows or should know is false or misleading or knows or should know omits a material fact or makes such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or representation. Such person also shall be subject to an assessment, in lieu of damages sustained by the United States because of such statement or representation, of not more than twice the amount of benefits or payments paid as a result of such a statement or representation.
(b) PENALTY. The penalty described in this subsection is
(1) nonpayment of
benefits under title II that would otherwise be payable to the person; and
(2) ineligibility for cash benefits under
title XVI, for each month that begins during the applicable period of described in
subsection (c).
(c) DURATION OF PENALTY. The duration of the applicable period, with respect to a determination by the Commissioner under subsection (a) that a person has engaged in conduct described in subsection (a), shall be
(1) six
consecutive months, in the case of the first such determination with respect to the
person;
(2) twelve consecutive months, in the case of
the second such determination with respect to the person; and
(3) twenty-four consecutive months, in the
case of the third or subsequent such determination with respect to the person.
B. 20 C.F.R. Sec. 404.1740(b):
(b) Affirmative duties. A representative shall, in conformity with the regulations setting forth our existing duties and responsibilities and those of claimants (see Sec. 04.1512 in disability and blindness claims): ...
(2) Assist the claimant in complying, as soon as practicable, with our requests for information or evidence at any stage of the administrative decision making process in his or her claim. In disability and blindness claims, this includes the obligation pursuant to Sec.404.1512(c) to assist the claimant in providing, upon our request, evidence about:
(i) The claimant's age;
(ii) The claimant's education and training;
(iii) The claimant's work experience;
(iv) The claimant's daily activities both before and after the date the
claimant alleges that he or she became disabled;
(v) The claimant's efforts to work; and
(vi) Any other factors showing how the claimant's impairment(s) affects his
or her ability to work.
1 According to Model Rule 1.0 (m):
"Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a\ legislative body, administrative agency or other body acting in an adjudicative\ capacity. A legislative body, administrative agency or other body acts in an\ adjudicative capacity when a neutral official, after the presentation of evidence or\ legal argument by a party or parties, will render a binding legal judgement directly\ affecting a party's interest in a particular matter."
2 The only explanation as to what an ex parte proceeding is is found in the official\ Comment to the Model Rules:
"Ordinarily, an advocate has the limited responsibility or presenting one side of\ the matters that a tribunal should consider in reaching a decision; the conflicting\ position is expected to be presented by the opposing party. However, in an ex\ parte proceeding, such as an application for a temporary restraining order, there is\ no balance of presentation by opposing advocates. The object of an ex parte\ proceeding is nevertheless to yield a substantially just result. The judge has an\ affirmative responsibility to accord the absent party just consideration. The\ lawyer for the represented party has the correlative duty to make disclosures of\ material facts know to the lawyer and that the lawyer reasonably believes are\ necessary to an informed decision."
In Richardson v. Perales, 402 U.S. 389 (1971), the United States Supreme Court noted that the\ Social Security Administration, in its hearings , "operates essentially and is intended to so to do,\ as an adjudicator and not as an advocate or adversary."
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