{"id":4801,"date":"2004-04-22T11:31:39","date_gmt":"2004-04-22T15:31:39","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2004\/04\/22\/more-on-the-silent-associate\/"},"modified":"2011-08-05T14:58:50","modified_gmt":"2011-08-05T18:58:50","slug":"more-on-the-silent-associate","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2004\/04\/22\/more-on-the-silent-associate\/","title":{"rendered":"More on the Silent Associate"},"content":{"rendered":"

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\"trust Excuses, excuses. Reaction to the April 7th Daniels v. Alander<\/a> decision out of Connecticut has not exactly been edifying. We posted on the case two weeks ago and generated an interesting thread<\/a> of commentary. Last week, it was also covered in the ABA Journal<\/a> eReport<\/em>, in an article<\/a> titled “To Tell the Truth — and Dispute the Boss<\/em>: Court Reprimands Attorney for Not Correcting \u2018Misstatements’.” (Thanks to John at LegalReader<\/a> for the pointer.)<\/font><\/p>\n

In an unanimous decision on the scope of ethical Rule 3.3<\/a> [Candor Toward the Tribunal ], the Conn. Supreme Court held (emphasis added) that <\/font><\/p>\n

“Depending upon the circumstances<\/strong>, the rule can pertain to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”<\/font><\/p><\/blockquote>\n

The Court has not carved out an inflexible, draconian standard of associate omniscience and vigilance. Please let me sum up its ruling: <\/font><\/p>\n

Mr. or Ms. Lawyer, there will be times when your knowledge that the tribunal is being misled will require you, as an officer of the court, to find a way to correct a misconception created in your presence, even when you are junior in status to the lawyer misleading the court. One of those times is when <\/font>— in the words of the lower Appellate Court decision<\/font><\/a> (April 2003) — “co-counsel made any number of misstatements about facts that purportedly came, and under the circumstances of this case, could only have come, from [your] own personal observations and knowledge of events that occurred outside of the court\u2019s presence. “<\/font><\/font><\/p><\/blockquote>\n


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As I opined on April 8th, the correctness of this principle seems obvious (and there should be no de minimis<\/em> exception if the point is material). Instead of hearing strong, loud encouragement for junior associates to do the right thing, even though it may often take some courage, we hear a chorus of excuses — cowardly catastrophizing and downright distortion about the scope of the court’s interpretation of Rule 3.3.<\/font><\/p>\n

\"monkey .. hear no evil, . . .<\/font><\/em><\/strong> <\/font><\/p>\n

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According to the ABA Journal<\/em>, a young associate who requests anonymity<\/em> moans that, in practice, being truthful is “basically committing professional suicide” –“explaining that if a young associate in her old firm raised ethical issues, the partners tended to ‘look at you as if you had four heads.'” Well, having four heads is preferable, I believe, to having no backbone. Talk of instant professional suicide is silly — (1) losing such a job is not<\/em> losing your profession, but would instead be keeping your professionalism alive; (2) it assumes an automatic degree of veniality in your bosses that even skepticalEsq won’t<\/em> ascribe to them; and (3) it suggests that a job with a bunch of ethics scofflaws is worth nurturing.<\/font><\/p>\n