BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1994-6

(Inquiry No. )

Topics:
Retainer of client and statements made to client prior to Retainer.
Digest:
Subject to stated qualifications, an attorney may advise client of applicable law before hearing client’s version of facts.
Code Provisions:
DR 7-102(A)(6)
EC 7-5
EC 7-6
Facts Presented:
A client consults with inquiring counsel about an automobile accident the client was involved in. Prior to discussing the case further inquiring counsel explains what is necessary to be successful on a claim as follows:

“Before you tell me anything . . . I want to tell you what you have to show in order to have a case. Just because you got hurt it doesn’t mean you have a case. I can’t tell you what to say happened because I wasn’t there. And I am bound by what you tell me happened and it must be the truth. Now, I know the intersection.

“Main Street [place where the accident took place] is governed by a Stop Sign. If you went through the Stop Sign without stopping — you will most likely have no case. If you stopped momentarily and then proceeded through the intersection you might have a case. If you stopped at the intersection and before proceeding to enter the intersection looked carefully and saw no cars that you believed would impede your proceeding then you have a much better case.”

Inquiry:
Would the conduct of inquiring counsel be ethical?
Determination:
Subject to the stated qualifications, the proposed conduct does not violate the Code of Professional Responsibility.
Analysis:
This Committee recognizes that the problem is a difficult one. On the one hand, the attorney is concerned that by educating the client in advance of a full recitation of the facts, the attorney may be enabling the client to tailor the client’s story to fit the applicable legal standards. On the other hand, while keeping a client willfully ignorant of the applicable legal rules until after the facts have been related might be viewed superficially as an interviewing technique better gauged to elicit a neutral recitation, to mandate this approach would in effect be to legislate mistrust of the client’s honesty, would run counter to the attorney’s basic function as delineated in EC 7-5, and would impede the attorney’s ability to avoid a lengthy discourse on extraneous matters by focusing the client’s attention on the relevant elements. The sensitivity of this area is reflected in EC 7-6, which provides:

“Whether the proposed action of a lawyer is within the bounds of the law may be a perplexing question when the client is contemplating a course of conduct having legal consequences that vary according to the client’s intent, motives, or desires at the time of the action. Often a lawyer is asked to assist the client in developing evidence relative to the state of mind of the client at a particular time. The lawyer may properly assist the client in the development and preservation of evidence of existing motive, intent, or desire; obviously, the lawyer may not do anything furthering the creation or preservation of false evidence. In many cases a lawyer may not be certain as to the state of mind of the client, and in those situations the lawyer should resolve reasonable doubts in favor of the client.

This Committee considered a similar inquiry in Nassau County Opinion #91-23. In Nassau County opinion # 91-23, the client informed the attorney that the client had been shopping in the client’s local supermarket when the client fell and broke the client’s leg. The attorney interjected that before the client told the attorney what happened, the attorney wished to tell the client what the law is in the State of New York including the requirement of constructive or actual notice, with proof of “actual notice” being “something like the manager saying to the employee after you have fallen ‘I told you to clean that up before someone was hurt’.”

This Committee, in considering the inquiry there posed, reviewed the applicable ethical authority, including DR 7-102 (A) (6) (which prohibits an attorney’s participation in the creation or preservation of evidence when he knows or it is obvious that the evidence is false), and EC 7-5 (which observes that an attorney “furthers the interest of the client by giving his professional opinion as to what he or she believes would likely be the ultimate decision of the courts on the matter at hand and by informing the client of the practical effect of such decision”). In the end, this Committee determined that ” [i]t is the obligation of an attorney to disclose to his client and inform him of the applicable rules of evidence and facts required” to prove the client’s case (emphasis added).

Based upon the principle elucidated in EC 7-6 of resolving reasonable doubts in favor of the client, this Committee does not believe that it is within its province — absent a specific code provision — to either mandate or prohibit specific interviewing techniques in an area so subjective. As long as the attorney in good faith does not believe that the attorney is participating in the creation of false evidence, the proposed conduct does not violate the Code.

[Approved by the Executive Subcommittee on 2/l/94; approved by the Full Committee on 2/16/94]