October 2019

Courthouse Cricket: Discovery Missteps and the Duty of Candor to the Tribunal

Communiqué, Clark County Bar Association

We are all familiar with the tale of Pinocchio from when we were children—a boy marionette made of wood lives with his creator, an old Italian guy, who wishes upon a star that he would come to life. A fairy grants the wish and appoints a dapper insect to follow and guide the now self-aware-but-not-yet-real talking wooden boy and serve as his conscience. As if this is not enough to turn a young boy into a social pariah, oh yeah, his nose grows every time he tells a lie.

Looking back on this story as adults, we can only help but think one (well, maybe two) things: (1) what kind of sick person came up with that plot; and (2) wouldn’t it help us as lawyers if it were always so easy to tell when someone (think clients, opposing counsel, etc.) was lying? Which brings us to the ethics topic of the moment—Rule 3.3(a)(1)’s mandate that a lawyer not knowingly “[m]ake 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.”

To read the full article, click here.

About the authors

Jessica Whelan is a 2012 graduate of Harvard Law School and Ryan Semerad is a 2016 graduate of The Ohio State University Moritz College of Law. Both are former judicial clerks and practice in Holland & Hart’s Las Vegas office in commercial/appellate litigation and professional ethics.

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