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Ethics Case Analysis

Lake Pleasant Bodies Case (A)

Submitted By:

Group #6

March 2, 1999


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Background

Attorney Frank Armani has been assigned by a district court in the State of New York to

defend Robert Garrow, a convicted rapist and suspected child molester, for the murder of

an eighteen year-old camper in the Adirondack Mountains near Lake Pleasant, New

York. Mr. Armani had provided advice to Mr. Garrow on three previous occasions, a

minor auto accident and a charge of unlawful imprisonment and possession of a

dangerous drug, which were later dismissed. In addition, Mr. Armani had been retained

by Garrow to defend him for allegedly molesting two young girls. Mr. Garrow never

appeared for trial and shortly thereafter was identified as the murderer of the camper near

Lake Pleasant.

Investigators suspected that Garrow was also responsible for the murder of Daniel Porter

and the disappearance of Susan Petz, two campers in the same area. Authorities believed

that Susan Petz could still be alive and wanted Garrow to reveal her whereabouts.

Garrow was finally located, and while being apprehended by police was shot several

times. Before going into surgery, Garrow requested that Armani defend him on the

murder charge and from that point forward refused to talk with anyone else.

Armani was reluctant to accept the case because of Garrows background and his own

lack of criminal defense experience; however, he felt an obligation to meet with Garrow

in the hospital. The police asked Armani to let them know if Garrow revealed anything

about Susan Petzs whereabouts. Garrow was unwilling to talk to Armani about any of

the murders and denied killing anyone. Garrow did not have the resources to hire a


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private attorney. The court appointed Armani to defend Garrow because of their on-

going relationship, despite Armanis lack of murder defense experience. Armani asked

his friend Francis Belge, an experienced criminal defense attorney, to help in the defense

of Garrow. Belge initially refused, but later agreed to be co-counsel.

Garrow still refused to be forthcoming with information for his defense or to admit

murdering anyone. Armani persuaded Garrow to submit to hypnosis, during which he

planted suggestions that Garrow should cooperate fully during an afternoon interview.

During the afternoon interview Garrow described killing a young lady named Alicia

Hauck, as well as killing Porter and Petz. Garrow also described where he hid the bodies

of Petz and Hauck. However, Garrow denied involvement in any other crimes, including

the murder of the original camper for which he was being held.

Belge and Armani confirmed Garrows story by locating Petzs body in an abandoned

mine shaft. Belge later located Haucks body in the vicinity of where Garrow had

described. Belge and Garrow believed they could not tell anyone of their findings

because of the legal and ethical responsibilities involved in the attorney-client privilege.

Susan Petzs father has now come to see Armani in an attempt to get information

regarding the whereabouts of his daughter.


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Issues

The primary ethical issue facing Frank Armani is whether or not to tell Susan Petzs

father where his daughters body is located. Withholding the information from Mr. Petz

would be a violation of Armanis personal ethics and emotions. Armani wants to give the

Petz family closure regarding the welfare of their daughter. Armani feels empathetic

toward the Petz family because his own parents suffered pain when his younger brother

disappeared over the North Sea and the body was never recovered. Armani imagines

how he would feel and that he would want to know the outcome if it were his daughter.

However, by disclosing the location of the body, Armani would violate the attorney-

client privilege and the ethical duty of confidentiality to his client.

The attorney-client privilege is the oldest of the testimonial privileges protecting

confidential communications (Internet 1). Generally the privilege covers legal advice,

and guidance and communications between the lawyer and the client. While the privilege

belongs to the client, it is the attorneys ethical responsibility to be the guardian of the

clients privilege. In New York, where this case is located, the attorney-client privilege,

which is codified in C.P.L.R. 4503, is broader in scope than the federal common-law

standard in that the privilege applies when an attorneys communication is made to

render legal advice or services to the client (Internet 2). The federal standard defines the

privilege only for communication containing confidential client information.

Canon 4 of the American Bar Association Model Code of Professional Responsibility

provides that a lawyer should preserve the confidences and secrets of a client (Cannon


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95). Information that the client has requested be kept confidential or information that

would be detrimental to the clients case are covered by this Code. The client must

consent to the disclosure of the confidential or detrimental information.

There are four conditions under which the Code allows confidentiality to be broken:

Client Consent

When Required by the Model Code, law, or court order

To prevent the commission of a crime

To establish or collect a fee or to defend against an accusation of wrongful conduct.

Armani should consider these conditions when formulating his ethical and legal position

on the issues.

The essence of the privilege is that an attorney cannot give the best legal advice to the

client without being fully informed of all the facts. A client may be reluctant to talk

freely if there is fear that the attorney would disclose the information. As was ruled in

Fisher v. United States, 425 U.S. 391, 403 (1976), As a practical matter, if the client

knows that damaging information could more readily be obtained from the attorney

following disclosure than from himself in the absence of disclosure, the client would be

reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal

advice.

Ethical Theories

There are several theories explaining the origin of ethics and moral standards. Positive

law, natural law, moral relativism, and religious beliefs are among these theories


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(Jennings 41). Positive law states that ethical decisions are based upon whether or not a

particular action is legal. If the action is legal, then it is ethical. Natural law is the theory

that some universal code governs our behavior and that this code applies to everyone.

Natural law does not consider whether the action is legal or not. A third way to assess

ethics is to consider the situation. Moral relativism bases morality and ethics on the

circumstances of a particular decision. For example, stealing may be ethically correct if

the situation justifies the thievery. Finally, religious beliefs are a way to explain ethical

and moral conduct. Writings such as the Bible and the Koran serve to guide many people

in their decisions of right and wrong.

The three most frequently used theories of ethical decision making are Egoism,

Deontology, and Utilitarianism. Simply put, Ethical Egoism is the idea that we should

always act selfishly (Internet 3). A true egoist does not believe in laws or moral codes,

unless these laws and codes support the egoists self-interest. As described by John

Beverley Robinson in his essay Egoism, egoism is the realization by the individual

that he is above all institutions and all formulas; that they exist only so far as he chooses

to make them his own by accepting them (Internet 4). If Frank Armani were an egoist,

he would inform Daniel Petz of the location of Petzs daughter. The sole reason Armani

would relate information about Petzs daughter is because Armani wants to tell Petz.

This decision is purely selfish and is made irrespective of the ethical code of his

profession.


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Deontology is the belief that the rightness and wrongness of actions does not depend

entirely on considerations of goodness (Internet 5). Instead, decisions are made based

on the individuals personal moral code. This moral code may or may not be based on

generally accepted principles of law and ethics. Under deontology, an individual would

always make the same decision in all situations. The decision would be based on a sense

of obligation (Internet 6). If Frank Armani were a deontologist, he would most likely

inform Petz as to the location of Petzs missing daughter. Armani would ignore the

ethical code of his profession and would follow his own personal moral code.

Considering that Armani had a brother who was missing in action in Asia, he can

empathize with the suffering that Mr. Petz is experiencing. This empathy would drive

Armanis moral decision to tell.

The final theory to be discussed is Utilitarianism. This theory emphasizes happiness-

producing consequences (Internet 6). Behaviors that produce happiness for the majority

are supported. A subset of utilitarianism, called Rule Utilitarianism, states that if a

small and simple set of rules are followed by everyone, then the maximum benefit would

insue in the long run (Internet 6). Ethical codes of conduct, such as those of the New

York State Bar Association, serve to enforce rule utilitarianism. Therefore, under this

doctrine, Armani would not disclose any information to Mr. Petz. Instead, Armani would

uphold the standards of attorney-client privilege and confidentiality.


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Alternatives and Consequences

Armani has two primary alternatives: to tell Mr. Petz where his daughter can be found or

to uphold the legal rule of attorney-client privilege and the ethical rule of confidentiality.

Both of these alternatives have positive and negative consequences affecting Armani,

Garrow, Belge, the Petz family, the Lake Pleasant community, and the legal system as a

whole.

Scenario 1

Mr. Armani divulges the whereabouts and condition of Susan Petz to her father. By

choosing this alternative Armani knowingly and deliberately violates the legal and ethical

rules of attorney-client privilege and confidentiality; however, there are considerable

positive consequences to taking this course of action. Although the news may be

horrifying to Mr. Petz, at least he knows what has happened to his daughter and can take

appropriate action to have her properly buried and begin the mourning process. In

addition, the police and the local Lake Pleasant community can discontinue the search for

Susan Petz, saving valuable time and community resources. Armani feels good on a

personal level as a father, because he would have wanted information if it had been his

daughter. Lastly, a positive aspect for the community is that Garrow could be charged

with the murder of Susan Petz and possibly convicted.

By choosing to tell Mr. Petz the whereabouts of his daughter, Armani risks substantial

negative consequences on a personal level, as well as on a legal and social level. By

violating the rules of attorney-client privilege and confidentiality Armani is likely to


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receive sanctions from the Bar Association, with the possibility of being disbarred,

thereby ending his career as an attorney. In addition, his law firm may be negatively

impacted by the turmoil experienced while Armani is under review by the legal system.

The firm may lose business because potential clients will question whether their

confidential information and communications will be respected. Not only is Armanis

firm affected, but so is Mr. Belge who specifically counseled Armani against divulging

the information. Belge may also lose business through his association with Armani as

co-counsel. Therefore, not only does Armani risk losing his own career, his actions could

affect the careers of his colleagues.

Garrow and the legal system could suffer additional negative impacts. On one hand,

Garrows rights would be violated and he would most likely be charged with the murder

of Susan Petz. On the other hand, it is also possible that Garrow could be acquitted of the

murder or he could receive a mistrial due to the improper disclosure and faulty legal

representation by Armani. If Garrow was also acquitted of the murder of the first

camper, he could possibly go free, which would have the greatest negative impact on the

community.

Scenario 2

Mr. Armani does not divulge the confidential information learned from Garrow. As

under Scenario 1, there are both negative and positive consequences if Armani decides to

abide by the rules of attorney-client privilege and confidentiality. Obviously, Mr. Petz is

negatively affected by Armanis decision to withhold the information regarding his


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daughter. Mr. Petz will continue to wonder whether his daughter is alive or dead and the

Lake Pleasant community will continue to expend considerable resources to search for

Susan Petz. Another negative effect is the personal impact on Armani. He must fight the

personal urge to divulge the information, which seems to go against his moral standards.

Armani may feel extreme guilt regarding his decision. In addition, it is likely that the

community would react negatively against Armani if they were to find out he withheld

the information.

There are several positive results if Armani chooses not to tell Mr. Petz the information

regarding his daughter. Individually, Armani is unlikely to face sanctions from the legal

community and he preserves his relationships with his law firm and Belge. More

importantly, Armani upholds the ethical and legal standards of the legal profession by

preserving the attorney-client privilege and rules of confidentiality. Garrow has the right

to counsel and due process, both of which would be compromised if Armani were to

violate Garrows confidence.

Conclusion/Recommendation

The recommendation is that Frank Armani follow the Utilitarian theory of ethical

decision making and maintain his clients confidentiality for the greater good of society.

Therefore, Armani will not reveal any information that violates the attorney-client

privilege. With the assistance of his co-council Frank Belge, Armani is familiar with the

canons of the New York State Bar Association Code of Professional Responsibility (see

Appendix A). Canon 4 of the code: A Lawyer Should Preserve the Confidences and


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Secrets of a Client, clearly states that informing the families would be a violation of

Disciplinary Rule (DR) 4-101 [1200.19]. For personal reasons, it will be very difficult

for Armani not to ease the minds of the Petz family. However, his solace is the

preservation of the U.S. criminal justice system and the balance and safety it instills in

our society. The first line of the aforementioned code states: The continued existence of

the free and democratic society depends upon recognition of the concept that justice is

based upon the rule of law grounded in respect for the dignity of the individual and the

capacity of the individual through reason for enlightened self-government (Internet 7).

Armani must support the justice system and uphold the code.

Canon 4 of the code outlines the rights of the client to privacy, and this right is automatic.

The lawyer must get the client to waive the right to allow disclosure. The lawyer cannot

disclose information without the clients consent. According to the utilitarian theory of

ethics, convincing the client to provide the information about the crimes will support the

greater good of all: the family of the victim, the criminal justice system, and the client

himself. Armani should try to convince his client to allow the disclosure of the location

of the bodies. Armani has two arguments to help persuade his client to disclose this

information: 1) to reinforce the insanity defense, and 2) to assist in potential plea-

bargains. In addition by Garrow disclosing the information, Armani would be able to

uphold the Bar Association Code of ethics.

Armani had a legitimate need to find out all of the details of his clients crimes.

Although he utilized questionable ethics by planting suggestions to obtain more


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information while Garrow was under hypnosis, Armani was mounting an insanity defense

that could be bolstered with details of additional crimes. In order to support that defense,

according to the criminal procedure laws in New York, Armani must fulfill the

requirements of Article 730 of the New York State Criminal Procedure by submitting a

report outlining the symptoms and condition of his client. Establishing the demented

pattern of destruction that Garrow was following would support this defense.

It is also a possibility that the plea-bargain process could be influenced with information

about the victim. While it is clear that Robert Garrow should be removed from society, it

is the duty of the lawyer to create the best possible defense for his client. In return for

information about Susan Petz, the district attorney might be more inclined to accept the

insanity plea. If Garrow is found to have had a mental disease or defect at the time of the

murders, he could possibly avoid life imprisonment or the death penalty, and be released

at a future time if found to be cured.

It is Armanis duty as a lawyer in the state of New York to uphold the New York Bar

Association Code. The one exception to the attorney-client privilege that applies in this

case is the knowledge of the intent of a client to commit a crime. If Garrow testifies

under oath that he did not kill Susan Petz, he will commit perjury. The seventh canon of

the Code: A Lawyer Should Represent a Client Zealously Within the Bounds of the Law,

clearly states that if the client commits a fraud, the lawyer should reveal the fraud to the

affected person or tribunal. Armani can use this argument to persuade Robert Garrow to


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provide information about the crimes. However, this argument is moot if Garrow does

not take the stand and testify.

The Lake Pleasant Bodies Case is a complex study of one of the most important ethical

issues facing attorneys whether to maintain the attorney-client privilege of a guilty

client, even when the attorney has information that would assist the injured party in the

case. By following the tenants of Utilitarianism, and specifically Rule Utilitarianism,

Frank Armani would uphold the professional code of ethics and maintain his clients

confidentiality. In the long run, this practice benefits society as a whole by maintaining

the integrity of a critical component of the United States justice system.


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BIBLIOGRAPHY

Cannon, Therese A. Ethics and Professional Responsibility for Legal Assistants.

Boston: Little, Brown, and Company, 1992.

Jennings, Marianne. Business: Its Legal, Ethical and Global Environment. Cincinnati:

South-Western College Publishing Co., 1997.

West, Ellen. The Lake Pleasant Bodies Case (A). Boston: Harvard Business School,

1990.

Internet 1 Chapter 1; The Attorney-Client Privilege [Online]. Available:

www.abanet.org/abapubs/5310215chap.html [1999, February 21].

Internet 2 Buzzetta, Daniel J. (1998, August 26). Sizing Up the Variable Scope of

Attorney-Client Privilege [Online]. Available:

(ljextra.com/practice/professionalresponsibility/0826acp.html) [1999, February

26].

Internet 3 Two Types of Egoism [Online]. Available:

http://ethics.acusd.edu/seattle/egoism/tsld003.htm [1999, February 23].

Internet 4 Robinson, John Beverley (No date). Egoism [Online]. Available:

http://pierce.ee.washington.edu/~davisd/egoist/articles/Egoism.Robinson.html

[1999, February 23].

Internet 5 Hubin, Donald C. (1998).Normative Ethical Theories [Online]. Available:

http://philosophy.ohio-

state.edu/people/donh/phil130/NormativeEthicalTheories/sld001.htm [1999,

February 23].
http://www.abanet.org/abapubs/5310215chap.htmlhttp://ethics.acusd.edu/seattle/egoism/tsld003.htmhttp://philosophy.ohio-state.edu/people/donh/phil130/NormativeEthicalTheories/sld001.htmhttp://philosophy.ohio-state.edu/people/donh/phil130/NormativeEthicalTheories/sld001.htmhttp://www.abanet.org/abapubs/5310215chap.htmlhttp://ethics.acusd.edu/seattle/egoism/tsld003.htmhttp://philosophy.ohio-state.edu/people/donh/phil130/NormativeEthicalTheories/sld001.htmhttp://philosophy.ohio-state.edu/people/donh/phil130/NormativeEthicalTheories/sld001.htm


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Internet 6 A Discussion of Deontological and Consequentialist Frameworks [Online].

Available: http://www.princeton.edu/~kenlee/pub/cs291week5.html [1999,

February 20].

Internet 7 TheNew York State Bar Association Code of Professional Responsibility

[ Online]. Available: http://www.nysba.org/opinions/codes/anchor1.html [1999,

February 26].
http://www.princeton.edu/~kenlee/pub/cs291week5.htmlhttp://www.nysba.org/opinions/codes/anchor1.htmlhttp://www.princeton.edu/~kenlee/pub/cs291week5.htmlhttp://www.nysba.org/opinions/codes/anchor1.html


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Appendix A

Excerpts from the New York State Bar

Association Code of Professional

Responsibility


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Appendix A: Excerpts from The New York State Bar Association

Code of Professional Responsibility

Adopted by the New York State Bar Association Effective January 1, 1970

As Amended Effective May 22, 1996

Table of Contents

* PREAMBLE

* DEFINITIONS* [1200.1]**

* CANON 1 A Lawyer Should Assist in Maintaining the Integrity

and Competence of the Legal Profession

o Ethical considerations

o Disciplinary rules

CANON 2 A Lawyer Should Assist the Legal Profession in

Fulfilling Its Duty to Make Legal Counsel Available



CANON 3 A Lawyer Should Assist in Preventing the

Unauthorized Practice of Lawo Ethical considerations


CANON 4 A Lawyer Should Preserve the Confidences and Secrets

of a Client



CANON 5 A Lawyer Should Exercise Independent Professional

Judgment on Behalf of a Client



CANON 6 A Lawyer Should Represent a Client Competently



CANON 7 A Lawyer Should Represent a Client Zealously Within

the Bounds of the Law



CANON 8 A Lawyer Should Assist in Improving the Legal System



CANON 9 A Lawyer Should Avoid Even the Appearance ofProfessional Impropriety



o Advice on Ethical Questions


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CANON 4: A Lawyer Should Preserve the Confidences and Secrets of a

Client

ETHICAL CONSIDERATIONS

* EC 4-1 Both the fiduciary relationship existing between lawyer and

client and the proper functioning of the legal system require the

preservation by the lawyer of confidences and secrets of one who

has employed or sought to employ the lawyer. A client must feel

free to discuss anything with his or her lawyer and a lawyer must

be equally free to obtain information beyond that volunteered by

the client. A lawyer should be fully informed of all the facts of

the matter being handled in order for the client to obtain the

full advantage of our legal system. It is for the lawyer in the

exercise of independent professional judgment to separate the

relevant and important from the irrelevant and unimportant. The

observance of the ethical obligation of a lawyer to hold

inviolate the confidences and secrets of a client not only

facilitates the full development of f acts essential to

proper representation of the client but also encourages non-

lawyers to seek early legal assistance.* EC 4-2 The obligation to protect confidences and secrets obviously

does not preclude a lawyer from revealing information when the

client consents after full disclosure, when necessary to perform

the lawyer's professional employment, when permitted by a

Disciplinary Rule, or when required by law. Unless the client

otherwise directs, a lawyer may disclose the affairs of the

client to partners or associates of his or her firm. It is a

matter of common knowledge that the normal operation of a law

office exposes confidential professional information to non-

lawyer employees of the office, particularly secretaries and

those having access to the files; and this obligates a lawyer to

exercise care in selecting and training employees so that the

sanctity of all confidences and secrets of clients may be

preserved. If the obligation extends to two or more clients as to

the same information, a lawyer should obtain the permission of

all before revealing the information. A lawyer must always be

sensitive to the rights and wishes of the client and act

scrupulously in the making of decisions which may involve the

disclosure of information obtained in the professional

relationship. Thus, in the absence of consent of the client after

full disclosure, a lawyer should not associate another lawyer in

the handling of a matter; nor should the lawyer, in the absence

of consent, seek counsel from another lawyer if there is a reason

able possibility that the identity of the client or the client's

confidences or secrets would be revealed to such lawyer. Both

social amenities and professional duty should cause a lawyer to

shun indiscreet conversations concerning clients.* EC 4-3 Unless the client otherwise directs, it is not improper for a

lawyer to give limited information to an outside agency necessary

for statistical, bookkeeping, accounting, data processing,

banking, printing, or other legitimate purposes, provided the

lawyer exercises due care in the selection of the agency and warns

the agency that the information must be kept confidential.

* EC 4-4 The attorney-client privilege is more limited than the ethical

obligation of a lawyer to guard the confidences and secrets of the


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client. This ethical precept, unlike the evidentiary privilege,

exists without regard to the nature or source of information or

the fact that others share the knowledge. A lawyer should

endeavor to act in a manner which preserves the evidentiary

privilege; for example, the lawyer should avoid professional

discussions in the presence of persons to whom the privilege does

not extend. A lawyer owes an obligation to advise the client of

the attorney-client privilege and timely to assert the privilege

unless it is waived by the client.

* EC 4-5 A lawyer should not use information acquired in the course of

the representation of a client to the disadvantage of the client

and a lawyer should not use, except with the consent of the client

after full disclosure, such information for the lawyer's own

purposes. Likewise, a lawyer should be diligent in his or her

efforts to prevent the misuse of such information by employees an

d associates. Care should be exercised by a lawyer to prevent the

disclosure of the confidences and secrets of one client to

another, and no employment should b e accepted that might require

such disclosure.

* EC 4-6 The obligation to protect confidences and secrets of a client

continues after the termination of employment. A lawyer shouldalso provide for the protection of the confidences and secrets of

the client following the termination of the practice of the

lawyer, whether termination is due to death, disability, or

retirement. For example, a lawyer might provide for the personal

papers of the client to be returned to the client and for the

papers of the lawyer to be delivered to another lawyer or to be

destroyed. In determining the method of disposition, the

instructions and wishes of the client should be a dominant

consideration.

* EC 4-7 The lawyer's exercise of discretion to disclose

confidences and secrets requires consideration of a wide range of

factors and should not be subject to reexamination. A lawyer is

afforded the professional discretion to reveal the intention of a

client to commit a crime and the information necessary to prevent

the crime and cannot be subjected to discipline either for

revealing or not revealing such intention or information. In

exercising this discretion, however, the lawyer should consider

such factors as the seriousness of the potential injury to others

if the prospective crime is committed, the likelihood that it will

be committed and its imminence, the apparent absence of any other

feasible way in which the potential injury can be prevented, the

extent to which the client may have attempted to involve the

lawyer in the prospective crime, the circumstances under

which the lawyer acquired the information of the client's intent,

and any other possibly aggravating or extenuating circumstances.

In any case, a disclosure adverse to the client's interest should

be no greater than the lawyer reasonably believes necessary to thepurpose.

DISCIPLINARY RULES

DR 4-101 [1200.19] Preservation of Confidences and Secrets of a Client

A. "Confidence" refers to information protected by the attorney-client


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privilege under applicable law, and "secret" refers to other

information gained in the professional relationship that the client has

requested be held inviolate o r the disclosure of which would be

embarrassing or would be likely to be detrimental to the client.

B. Except when permitted under DR 4-101 [1200.19] (C), a lawyer shall

not knowingly:

1. Reveal a confidence or secret of a client.

2. Use a confidence or secret of a client to the

disadvantage of the client.

3. Use a confidence or secret of a client for the

advantage of the lawyer or of a third person, unless

the client consents after full

C. A lawyer may reveal:

l. Confidences or secrets with the consent of the

client or clients affected, but only after a fulldisclosure to them.

2. Confidences or secrets when permitted under

Disciplinary Rules or required by law or court order.

3. The intention of a client to commit a crime and the

information necessary to prevent the crime.

4. Confidences or secrets necessary to establish or

collect the lawyer's fee or to defend the lawyer or his

or her employees or associates against an accusation

of wrongful conduct.

5. Confidences or secrets to the extent implicit in

withdrawing a written or oral opinion or

representation previously given by the lawyer and

believed by the lawyer still to be relied upon by a

third person where the lawyer has discovered that the

opinion or representation was based on materially

inaccurate in formation or is being used to further a

crime or fraud.

D. A lawyer shall exercise reasonable care to prevent his or her

employees, associates, and others whose services are utilized by the

lawyer from disclosing or using confidences or secrets of a client,

except that a lawyer may reveal the information allowed by DR 4-

101[1200.19](C) through an employee.

CANON 7: A Lawyer Should Represent a Client Zealously Within the Bounds

of the Law

DISCIPLINARY RULES

DR 7-101 [1200.32] Representing a Client Zealously.


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A. A lawyer shall not intentionally:

1. Fail to seek the lawful objectives of the client through

reasonably available means permitted by law and the

Disciplinary Rules, except as provided by DR 7-101 [1200.32]

(B). A lawyer does not violate this Disciplinary Rule,

however, by acceding to reasonable requests of opposing

counsel which do not prejudice the rights of the client, by

being punctual in fulfilling all professional commitments,

by avoiding offensive tactics, or by treating with courtesy

and consideration all persons involved in the legal process.

2. Fail to carry out a contract of employment entered into with

a client for professional services, but the lawyer may

withdraw as permitted under DR 2-110 [1200.15], DR 5-102

[1200.21], and DR 5-105 [1200.24].

3. Prejudice or damage the client during the course of the

professional relationship, except as required under DR 7-102

[1200.33] (B).

B. In the representation of a client, a lawyer may:

1. Where permissible, exercise professional judgment to waive

or fail to assert a right or position of the client.

2. Refuse to aid or participate in conduct that the lawyer

believes to be unlawful, even though there is some support

for an argument that the conduct is legal.

DR 7-102 [1200.33] Representing a Client Within the Bounds of the Law.

A. In the representation of a client, a lawyer shall not:

1. File a suit, assert a position, conduct a defense, delay a

trial, or take other action on behalf of the client when the

lawyer knows or when it is obvious that such action would

serve merely to harass or maliciously injure another.

2. Knowingly advance a claim or defense that is unwarranted

under existing law, except that the lawyer may advance such

claim or defense if it can be supported by good faith

argument for an extension, modification, or reversal of

existing law.

3. Conceal or knowingly fail to disclose that which the lawyer

is required by law to reveal.

4. Knowingly use perjured testimony or false evidence.

5. Knowingly make a false statement of law or fact.

6. Participate in the creation or preservation of evidence when

the lawyer knows or it is obvious that the evidence is

false.7. Counsel or assist the client in conduct that the lawyer

knows to be illegal or fraudulent.

8. Knowingly engage in other illegal conduct or conduct

contrary to a Disciplinary Rule.

B. A lawyer who receives information clearly establishing that:

1. The client has, in the course of the representation,

perpetrated a fraud upon a person or tribunal shall promptly


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call upon the client to rectify the same, and if the client

refuses or is unable to do so, the lawyer shall reveal the

fraud to the affected person or tribunal, except when the

information is protected as a confidence or secret.

2. A person other than the client has perpetrated a fraud upon

a tribunal shall promptly reveal the fraud to the tribunal.

DR 7-103 [1200.34] Performing the Duty of Public Prosecutor or Other

Government Lawyer.

A. A public prosecutor or other government lawyer shall not institute

or cause to be instituted criminal charges when he or she knows or it

is obvious that the charges are not supported by probable cause.

B. A public prosecutor or other government lawyer in criminal

litigation shall make timely disclosure to counsel for the defendant,

or to a defendant who has no counsel, of the existence of evidence,

known to the prosecutor or other government lawyer, that tends to

negate the guilt of the accused, mitigate the degree of the offense or

reduce the punishment.

Copyright (c)1996, New York State Bar Association. All rights

reserved. The NYSBA logo is a trademark of the New York State Bar

Association.

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