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The Lawyer’s Duty of Candor To The Client – Should It Be Incorporated Into the Model Rules of Professional Conduct?

The Lawyer’s Duty of Candor to the Client – Should It Be Formally Defined?

Is it ever appropriate to lie to your client? Judge Raymond J. McKoski, an adjunct professor of law at John Marshall Law School, has posted a thoughtful article on the lawyer’s duty of candor to the client. The article is titlted: “The Truth Be told: The Need for a Model Rule Defining a Lawyer’s Duty of Candor to a Client.” A link to the paper can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2419494.

McKoski notes that Model Rule of Professional Conduct 4.1 “bars a lawyer from making a false statement of material fact to a third person in connection with the representation of a client.” He notes, however, “there is no Model Rule establishing and defining a lawyer’s duty of candor to a client.” McKoski believes that there should be such a rule. Indeed, he proposes the addition of a new subsection (c) of Model Rule 1.4 which would provide as follows:

“A lawyer shall not knowingly make a false statement to a client and shall make disclosures to a client necessary to avoid misleading the client.” Draft at 83. He notes that Model Rule 1.4 sets forth the lawyer’s duty to communicate with his client.

McKoski argues persuasively that it has long been understood that lawyers should not lie to their clients, just as they cannot lie to a court, third parties, the public, or make false statements about judges. If that is true, why not add an express rule requiring lawyers to be truthful to their clients. Even Rule 8.4(c), which prohibits dishonesty, does not contain a provision relating to the lawyer’s communications with his client.

In sum, this is a clear and concise article that argues for a small reform of the ABA Model Rules to make the lawyer’s obligation to the client more clear. I was persuaded by the thoughtful article and its modest proposal to improve the relations between lawyers and clients.

Edward X. Clinton, Jr.

www.clintonlaw.net