Two decisions released simultaneously by the Connecticut Appellate Court remind attorneys that they must occasionally sacrifice a strategic advantage by disclosing valuable information to an adversary.

In Nelson v. Charlesworth, the Appellate Court affirmed the reopening of a default judgment beyond the four-month limitation period because, following the judgment, the plaintiff's attorney engaged the defendant's insurer in settlement negotiations until the four-month period expired and only then informed the insurer of the judgment.  The court found that, by engaging in "sham negotiations," without disclosing the existence of the judgment, the plaintiff's attorney engaged in fraudulent behavior violating Rule 4.1 of the Rules of Professional Conduct, thus satisfying an exception to the four-month requirement.

In Pavone v. West, the court reluctantly affirmed a default judgment where the plaintiff's attorney, despite her knowledge of the identity of the defendant's attorney and insurer, chose not to inform them of the lawsuit.  Instead, she took advantage of the fact that the defendant himself, although properly served, was either unaware of the lawsuit or simply failed to respond to it.  The lawyer obtained a default judgment and then waited seven months to enforce it.  The Appellate Court held that the judgment could not be reopened in this instance.  That did not stop the court from condemning the tactics of plaintiff's counsel, however, and accusing her of violating Rule 3.2 of the Rules of Professional Conduct requiring that lawyers "make reasonable efforts to expedite litigation consistent with the interests of the client."

Hoodwinking the other side, in the court's view, was not a legitimate interest of the client.

A common misperception among lawyers is that a "don't ask, don't tell" approach to the disclosure of relevant information satisfies their ethical responsibilities.  As these cases point out, sometimes lawyers must tell, even when people do not ask.  Silence is acceptable, but only when it cannot be construed as an effort to mislead.  In addition, there is a duty to affirmatively correct a misapprehension created by the conduct or statements of a lawyer or client.  These two Appellate Court decisions, however, raise another issue that should cause concern to lawyers.

In Nelson and Pavone, the Appellate Court affirmatively states, as it has occasionally done in other cases that also do not directly concern attorney misconduct, that an attorney involved in the case has violated the Rules of Professional Conduct.  The court should be circumspect about doing so.  Particularly in Pavone, the resolution of the underlying case did not require a determination of the issues of professional ethics raised by the record.  Courts certainly have an obligation to take action against attorney misconduct when it occurs in the presence of the court.  It is unsettling, however, to see judgment passed on an attorney's ethics, based on conduct outside the court's presence, without the normal protections that are afforded in the course of disciplinary proceedings.  An attorney accused of an ethical impropriety, however obvious the misconduct may appear, ought to be permitted to defend herself.

A court's conclusion that an attorney has acted unethically, reached in the course of deciding the client's case, may force the attorney to relinquish his own interest in defending his professional reputation in order to protect the client's interests.

For example, in Pavone, the attorney faulted for an ethical transgression nevertheless won the case for her client.  Though it may not be the best forum, the attorney might wish to have the court reconsider its conclusion on the ethical issue.  The client, on the other hand, must be pleased to have won the case.  Prudence dictates that the lawyer, on behalf of the client, leave well enough alone.  At a minimum, the client's permission is required before the lawyer sets out to mount a personal defense.

Even when the allegedly faulty lawyer is on the losing side, the court's determination of the ethical issue in the course of reasoning its way to a decision of the client's case implicates similar concerns.  The court's focus should be on the dispute between the parties, not on casting the appropriate legal characterization on the attorney's conduct.

The appropriate thing for the court to do in such a case is to refer the potential ethical violation to the grievance committee.  It is not necessarily the best outcome for the lawyer, who may be willing to suffer the indignity of the court's decision in order to avoid a grievance.  Nevertheless, to avoid potential conflicts between attorneys and their clients, and to afford an attorney a meaningful opportunity to defend herself against charges of ethical impropriety, the court should avoid passing judgment on an attorney's conduct outside the scope of a proceeding whose express purpose is to adjudicate that issue.

This article originally appeared in the June 14, 2004, issue of the Connecticut Law Tribune. It is reprinted with permission of the publisher.