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When Clients Want to Abuse Discovery, What Do You Do?

For some lawyers, when clients push to cross the line, it can be difficult to push back. However, when push comes to shove, a single client isn't worth putting your license or reputation at risk, even if that means losing the client.

In many cases, it may not be readily apparent at the outset that a client will ask you to push ethical boundaries down the road. What starts as a seemingly typical, though stubborn, contract litigation may have all been a ruse to get some confidential trade secret discovery that your client wants to see, despite an "attorney eyes only" protective order being in place. Though this may be an uncommon situation, generally, it is not that out of the ordinary for lawyers to be asked by clients to abuse discovery. In fact, discovery abuse is already a rampant problem amongst attorneys and inherent in the discovery system, and has been for some years now. But when clients want to do abuse discovery, it's always a little bit different.

Avoiding Improper Purposes Helps Clients

While a lawyer's job is to serve a client, we are precluded from initiating and maintaining proceedings for an improper purpose. We risk sanction and censure from our licensing bodies if we are found to violate our ethical duties, not to mention court sanctions related to discovery abuses. These could include requesting harassing discovery at the request of a vindictive client, or a myriad range of other abuses.

So when a client asks you to ignore ethical boundaries, it's wise to have a chat with them about your role and ability to help them. You can start by explaining the difference between using strategic discovery methods and abusive discovery, with the former being useful and the latter being potentially harmful to the eventual outcome of the case.

Strategy Versus Abuse

If you have a client demanding to see protected discovery, or seeking discovery to harass, you may have a client control problem in addition to a potential ethical problem on your hands.

Basically, if you suspect that a client is pushing litigation primarily to harass, or to secure an unfair advantage, you may need to have a serious chat with your client about your own boundaries as a professional, and what it means to them if you are compromised (which is likely if you have to continually find reasons/excuses for a client's unreasonable conduct). This latter point can also be used to stress the financial disadvantage to the client of having to replace counsel mid-litigation, get the new counsel up to speed, as well as pay the potential loss that might be coming down the pipeline as a result of unethical conduct, if discovered.

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