With win over Panama, did Mexico violate the Model Rules of Professional Conduct?
Friday, July 24, 2015 at 9:38AM
Ilya Zlatkin in Ethics, Eugene Volokh, Mexico, Model Rule of Professional Conduct, Panama

Mexico's win over Panama on the strength of a questionable referee's call was discussed Thursday in Felipe Maldonado Garcia's post. I'd like to analogize what happened in the match to the world of lawyering.

That is, does a player who benefits from a bad call have an obligation to say: “Sorry ref, you got it wrong”? Eugene Volokh addressed this very situation on his blog a few years ago.

If you're in court and a judge issues a ruling in your favor that you know is incorrect, the dilemma is the same. So what's a lawyer to do?

Model Rule of Professional Conduct 3.3 applies.

It says in part:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

If we view the referee as the judge, it doesn’t appear there's any evidence of a player making a knowing false statement of fact or law. The referee made the handball call himself.

And because the situation involves the interpretation of facts as opposed to law, we can disregard the obligation to notify the referee of controlling authority.

The maximum obligation imposed on a lawyer is disclosure to the tribunal. Continuing with the analogy, that’s the equivalent of telling the referee that “no, I wasn’t really fouled.” We can argue that a player who saw there was no handball should have said so to the referee. Before the penalty shot was ever taken, the situation could have been remedied (the restart would have been a dropped ball).

But the ethical question presented in Felipe’s post is whether the penalty-shot taker should have missed the kick intentionally. The above professional conduct standards do not require anything like that. Nothing states that the lawyer should rectify the wrong beyond disclosure to the tribunal. (As a matter of fact, getting personally involved in the facts could easily lead to loss of your license to practice law.)

We also have to ask, to whom else does the attorney owe ethical obligations? Does he owe it to his opposition (here, Panama)? How about to his boss (here, the team coach) to capitalize on the favorable ruling? Or does he owe it to his client to create a result that's most favorable?

Out of the three, the duty to the client is paramount. So the kick taker, who has not defrauded the tribunal, owes to his client (his team’s supporters -- the fans of Mexico) the best possible result. By scoring, the player actually fulfills his ethical obligations, whereas by purposefully missing the shot, he should be viewed as having violated his ethical duties.

But here's a final caveat. I've assumed that the best result for the client is to win the match, as opposed to honoring the process of winning the match. If honor is the best result, we're faced with a whole new set of ethical questions.

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Ilya Zlatkin is a Chicago attorney focusing on business planning, intellectual property, and international entrepreneurship. He's also a Certified Fraud Examiner. He can be contacted here.

Article originally appeared on The FCPA Blog (http://www.fcpablog.com/).
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