**Ethics in the Litigation Process & Review

Discovery is the process of gathering information for a lawsuit. Ethical breaches in discovery can have severe consequences, including sanctions from the court and damage to your reputation. Key areas of concern include:

• Duty of Candor and Truthfulness: You must provide truthful and accurate responses to discovery requests. Knowingly providing false or misleading information is unethical and can constitute perjury.
  • Example: If asked about the existence of a document, you cannot deliberately hide or misrepresent its whereabouts.
• Preservation of Evidence: You have a duty to preserve evidence, even before a lawsuit is filed if litigation is reasonably anticipated. This includes electronic evidence (emails, social media, etc.). Failure to preserve evidence can lead to severe penalties.
  • Example: A client instructs you to delete all emails related to a specific product. This is unethical and illegal.
• Confidentiality: During discovery, you will inevitably learn confidential information about the opposing party. This information must be protected.
  • Example: Do not share privileged information obtained during deposition transcript review with unauthorized parties.

Trial preparation involves many opportunities for ethical breaches. Remember that the ultimate goal is to represent your client competently and ethically. Key areas of concern include:

• Witness Preparation: While it's acceptable to prepare witnesses for testimony, you cannot coach them to lie or distort the truth. Witness preparation should involve educating the witness on the format, process and helping them to present their testimony accurately and truthfully.
  • Example: It is unethical to tell a witness what to say or to provide false information.
• Evidence Handling: You must ensure that all evidence is properly authenticated and presented to the court. Tampering with evidence is a serious offense.
  • Example: Do not alter, destroy, or conceal documents.
• Communication with Opposing Counsel/Parties: All communication with the opposing party must be professional and follow the rules of the court. Misleading the opposing party is unethical.
  • Example: You cannot make false promises or misrepresent facts during settlement negotiations.

Settlement negotiations offer an opportunity to resolve a case without going to trial. However, ethical responsibilities remain paramount. Key considerations include:

• Confidentiality: Settlement discussions are often confidential. You must not disclose settlement offers or terms to unauthorized parties.
  • Example: Sharing the amount a client has offered to settle a case with anyone outside the legal team is a breach of confidentiality.
• Fairness and Honesty: You must be honest and fair in all settlement negotiations. Making false statements or concealing relevant information is unethical.
  • Example: Knowingly misrepresenting the facts of the case during settlement talks is unethical.
• Conflicts of Interest: As always, conflicts of interest must be avoided or disclosed. If you believe your client has a conflict, you must report it to the attorney on the case immediately.
  • Example: A law firm represents two clients with competing claims in a settlement. This is an impermissible conflict of interest.

Throughout the week, you've learned about fundamental ethical obligations. Let's recap some key concepts:

• Confidentiality: Protecting client information.
• Competence: Providing competent and diligent legal services.
• Conflicts of Interest: Avoiding situations where your interests, or those of your firm, clash with your client's interests.
• Duty of Candor: Being truthful with the court and opposing parties.
• Fairness: Treating all parties with respect and honesty.
• Honesty: Making sure all communications are accurate and true.