When Legal Startegy & Ethics Conflict
Yesterday, Carolyn Elefant had an interesting posting entitled: "Who's More Ethical: the Lawyer With the Client Who Lied or the Lawyer Who Withheld Evidence of the Lie?". The post centers around a medical malpractice case where defense lawyers obtained video evidence that the plaintiff who was claiming to be paralyzed from a doctor's negligence could walk. The defense attorneys made the tactical decision to withhold disclosure of the tape for 21 months - which leads to the question - is this strategic decision ethical? Plaintiff's attorneys argued if the defendant's had shown the video earlier, they wouldn't have invested 21 months worth of litigation time, cost, doctors fees and judicial resources (that would have also been the case if their client hadn't perpetrated a fraud). However, is the withholding of this key evidence ethical if the defense lawyers immediately disclosed it's existence to their clients and the client made the decision to proceed for 21 months incurring additional costs and legal fees in its defense? (Ms. Elefant's posting relies in great part on another posting by Mike Cernovich, here). It is an interesting question to ponder.