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An Ethical Dilemma 1

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Kaplan University
PA110 Unit 9 Assignment
April 1, 2015
An Ethical Dilemma 2

Justin King was involved in a car accident, which has resulted in a civil lawsuit. Justin

has recently admitted that on the day of the accident, just before leaving Chicago, he met friends

for pizza and beer where he states that he had quite a few before driving on his motorcycle.

Because he was passed out when the police and ambulance arrived, there were no tests

performed to determine if he had alcohol in his system. Additionally, Kings toxicology reports

were mistakenly destroyed by staff members of Paxton Medical Center as part of a customary

policy. Mr. King admits that he intends to lie on the stand if asked about alcohol consumption

prior to the accident.


The first issue is whether allowing Justin to testify will constitute a violation of the

Model Rules of Professional Conduct? The Model Rules of Professional Conduct: Rule 1.2(d)

states that that a lawyer shall not advise or aid a client in behavior that the lawyer knows to be

illicit or deceitful. Additionally, Rule 1.2(d) also states a lawyer may advise their client of the

legal consequences of any proposed actions or behavior. ABA Model of Profl Conduct R.

1.2(d) (2013). By allowing him to take the stand, the lawyer for Justin King would knowingly be

assisting a client in engaging in fraudulent behavior. Therefore, it would be in the best interests

of the lawyer to either not put Mr. King on the stand or to inform him that if he chooses to lie

under oath he can be charged with perjury.


The second issue is whether the ethical duty of confidentiality applies to this situation?

Rule 1.6 of the Model Rules states that a lawyer is permitted to reveal information that he

reasonably believes necessary to the appropriate authorities if it will prevent the client from

committing a crime or fraud. (Rule 1.0 defines fraud as having the purpose to deceive.) ABA

Model of Profl Conduct R. 1.6(a) (2013). Justin King has admitted that he plans to lie if asked

about his alcohol consumption the day of the accident. If King should prevail from the trail with

a monetary judgment, then his false statement could affect the financial interests of the
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defendant. By lying on the stand, Mr. King is committing a crime of perjury in order to win his

lawsuit. Therefore, if Mr. King insists that he intends to lie on the stand in regards to his alcohol

consumption the day of the accident, the lawyer for Justin King has the right to withdraw his

representation of Mr. King. Additionally, the lawyer for Mr. King is permitted to reveal that

King plans to commit perjury by lying on the stand. Disclosing this information will not be a

violating the ethical duty of confidentiality.


The third issue is whether the lawyer representing Justin King has a duty to take

reasonable measures to inform the tribunal of any criminal of fraudulent activity his client has

engaged or might engage in. Rule 3.3(b) of the Model Rules states that, should a lawyer know

that his client has engaged or intends to engage in criminal or fraudulent behavior, in regards to

the trial, the lawyer shall make a reasonable effort, if necessary, to disclose this information to

the tribunal. ABA Model of Profl Conduct R. 3.3(b) (2013). The client has already admitted

that he intends to commit a fraudulent act by lying about his alcohol consumption the day of the

accident. If Mr. Kings attorney did not disclose this to the tribunal, he would be in violation of

the Model Rules. Therefore, it is in the best interest of Mr. Kings attorney to advise the client

that lawyers have a duty to be truthful to the tribunal and to seek assistance from the client in

regards to the making false statement. If this is not a viable option, then the attorney must take

corrective action to either withdraw from representation of said client, or disclose what

information is reasonably necessary to the tribunal, regardless if the information revealed would

otherwise be protected under Rule 1.6


The fourth issue is whether the attorney for Mr. King has a duty to the opposing counsel

or party. In accordance with the Model Rules 3.4(b), a lawyer shall not advise or assist a witness

or their client to give a false testimony. ABA Model of Profl Conduct R. 3.4(b) (2013). If the

attorney for Mr. King fails to take corrective action, by either revealing the clients plans to
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commit perjury to the tribunal or by withdrawing representation, then the attorney is guilty of

violating the Model Rules by assisting their client with a false testimony. By allowing the client

to give false testimony, the attorney has not offered fairness to the opposing counsel and party.

Therefore, the attorney to Mr. King not only has a duty to the tribunal, but also a duty to the

defendant and counsel and should inform the tribunal of Mr. Kings intention to commit perjury.

In conclusion, Mr. King is most likely responsible for, or could have avoided, the

accident had he not been under the influence of alcohol at the time of the accident. It should be

explained to Mr. King that because he was intoxicated at the time of the accident, he may be

more at fault for the accident than the defendant. If Mr. King chooses to go forward with the

lawsuit, he should be advised that the defendant may suffer considerable harm to his financial

assets. Additionally, should be demand to be put on the stand, Mr. King should be aware that he

is committing perjury, which if found guilty he could either be fined or imprisoned for a

maximum of five years. To avoid a violation of the Model Rules, the attorney has the option to

either withdraw representation or, if this is not a viable option, he may disclose what information

he believes reasonably necessary to the tribunal.


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References:

Model Rules of Professional Conduct: Rule 1.2: Scope of Representation & Allocation of

Authority between Client & Lawyer. (2015). Retrieved from:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pro

fessional_conduct/rule_1_2_scope_of_representation_allocation_of_authority_between_client_la

wyer.html
Model Rules of Professional Conduct: Rule 1.6: Confidentiality of Information. (2015).

Retrieved from:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pro

fessional_conduct/rule_1_6_confidentiality_of_information.html
Model Rules of Professional Conduct: Rule 3.3: Candor toward the Tribunal. (2015). Retrieved

from:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pro

fessional_conduct/rule_3_3_candor_toward_the_tribunal.html
Model Rules of Professional Conduct: Rule 3.4: Fairness to Opposing Party & Counsel. (2015).

Retrieved from:

http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_pro

fessional_conduct/rule_3_4_fairness_to_opposing_party_counsel.html