Document Type
Article
Abstract
This article is framed as a discussion of two proposals for modifying the Model Rules. One would declare fabricated controversy to be out of bounds as a tactical tool. The other would expressly affirm that it is an abuse of confidentiality for lawyers to engage in strategies of partial-truth advocacy, to assert partial truths while deliberately holding back other information that the lawyer should know is needed in order not to mislead others. Both of these techniques, fabrication of controversy and partial-truth advocacy, tend to undercut the trial as a “search for truth” and both interfere with negotiations as a search for fairness in transactions. Both, moreover, are utilized by lawyers precisely because they undercut and interfere with the intended functioning of these processes. They are resorted to by diligent advocates when factual truth would ill-serve the client's interest at trial, and by diligent negotiators when truthful disclosure would likely prevent a client from getting a deal that the other party would make only if deluded. Finally, and worst of all, both of these lawyering techniques detract from the legal system's ability to achieve the “gold standard” of justice and the rule of law, viz. the substance of the law applied to the events that actually occur.
Recommended Citation
John A. Humbach, Abuse of Confidentiality and Fabricated Controversy: Two Proposals, Prof. Law., Summer 2000, at 1, http://digitalcommons.pace.edu/lawfaculty/450/.