Denver Bar Association
February 2003
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The Legal Ethicist

by S. Goodsayer


What to do when the line grows fuzzy

Q: I represent a plaintiff in a products liability action. My client suffered serious injuries, and I hired an economist who issued a report projecting lost wages over a five-year period. Discovery is completed, subject to the duty to supplement. We have a settlement conference scheduled next week. My client called me yesterday and said he had seen an oncologist who told him that he has cancer and can expect to live no more than six months, even with the most aggressive treatment. There is no basis for concluding the accident caused the cancer. Am I ethically required to tell the defendant either before or at the settlement conference?

A: I presume that you and your client have confidence in the doctor’s opinion or, at the very least, you have no reason to doubt its veracity. In that case, the answer is—of course.

The legal system is designed to provide a fair process to achieve a just outcome. In the circumstances you describe, it would be unjust for your client to recover for damages that he will not incur. You are under no obligation to use the system to achieve an unjust outcome. Indeed, you owe a duty to the justice system to preserve its integrity. As Samuel Johnson said, "Whoever commits a fraud is guilty not only of the particular injury to him who he deceives, but of the diminution of that confidence which constitutes not only the ease but the existence of society."

Consider for a moment what might happen if you do not disclose the information. If you reach a settlement, you may or may not be able to hide your client’s condition. (Perhaps the documents aren’t drafted before he becomes incapacitated.) If the defendant discovers the cover-up, you may well have damaged the client’s claim (perhaps because the plaintiff’s testimony may no longer be preservable or because there is a motion to set aside the settlement), and you will surely have damaged your reputation.

Consider further how you would expect to be treated were you representing the defendant. Would you expect to be told this information? More important, would your client expect to be told? The answer is obvious.

The answer might be different in other circumstances. An attorney is not obligated to make up for his opponent’s sloth. So, for example, if the client’s condition were disclosed in discovery, and the defendant were still unaware during the settlement conference, the attorney would be under no obligation to remind the defendant; but in the circumstances described, it would be unethical to fail to disclose the information.

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