Dinner or Deception?
by S. Goodsayer
E-mail the Legal Ethicist at TheLegalEthicist@aol.com
Q: I represent an out-of-state defendant in litigation in Colorado. Recently, the plaintiff’s attorney took depositions at my client’s offices in Iowa. The plaintiff, who lives in Colorado, attended, and I defended. The depositions took two days. After the first day, the plaintiff and his attorney (whom I know from law school) asked if I would like to go to dinner with them. (My client made it clear he had no need for me that evening.) Assuming that we don’t talk about the case, would it be unethical of me to do so?
A: It would be unethical unless your client has been informed in advance and has approved.
An attorney must zealously protect the confidences of his client. These confidences include not only communications with the attorney, but the underlying trust that is essential to the attorney-client relationship. The attorney must avoid anything that endangers that trust, unless the circumstances require it.
Sometimes, an attorney is put into a position in which he or she must risk endangering that trust. Such a situation may arise, for example, when discovery has revealed information that suggests that his or her prior evaluation of the case was incorrect, or when she owes a legal duty to report improper conduct by the client. However, an attorney must avoid any action that unnecessarily risks rupturing the client’s trust.
In your situation, you have no assurance that your dinner will not cause your client to question your loyalty. Your client likely views your trip as an opportunity to serve his interests, not your social needs. Although eating alone is never preferred, it is the correct course in this instance.
The same answer would not hold true were the offer to dine only with the attorney, and not the plaintiff. Attorneys meet and discuss cases regularly, and a client need not be advised in advance every time a communication is anticipated. However, a client should be advised of an anticipated meeting between his attorney and the other party when that meeting is social and does not involve a multitude of people.
Your client would expect nothing less from you.