In prior attorney liability columns, this author has attempted to distinguish between counsel and client’s misconduct with regard to sanctions, Dragonetti and malpractice contentions. Notwithstanding that a significant portion of our practice involves suing attorneys for legal malpractice, it has always been our belief that the law should distinguish between counsel’s obligations of zealous advocacy from a client’s misconduct. Generally speaking, our rules of ethics, standards of conduct and sanctions case law necessarily differentiate between counsel and client liability. A plain understanding is that an attorney is not obligated to second-guess his or her client notwithstanding that client’s representations may lack evidentiary support.
However, there appears a burden-shift as to counsel’s obligations when a client’s stand-alone testimony is objectively at odds with incontrovertible evidence.
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