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Settle?
Bowl Leader
Remember, it’s your license.
You know the rule.
Rising Star
I assume that the detail is a big thing about a material issue in the case. On that assumption if I was you here is my workstream:
1. Get complete answers to two questions. First, does it render any prior testimony or discovery response false or misleading? Second, has the client omitted other material details has the client omitted or misstated? I would extract them by saying “what you shared is a serious problem that raises an obvious credibility issue for you and for me. I need complete, honest answers to two questions, and I need them now.” If I sensed any hedging or lack of candor I would advise the client to seek other counsel and begin work on a motion to withdraw.
2. If the answers to the first two questions appear to be candid and credible, advise the client on the steps you need to take immediately to correct the record and the consequences and risks of proceeding after the record is corrected. Make clear that you can’t and won’t present fake or misleading information to the finder of fact. Also advise the client about your candid settlement assessment. I would do all of that in person and then send a confirmatory memo or email.
3. The client gets to decide whether to settle or try the case. If a settlement is reached, the problem is moot. If not you have to amend all prior false or misleading statements in the record, and avoid knowingly presenting a false picture ti the judge jury. There’s no tension in your duties in that situation. No lawyer has a duty to lie for his client or help the client lie. If the client loses because the new detail or something else is revealed, thats on him, not you.
Many bar associations have ethics hotlines. If you can, reach out there. You can be fully candid and get a more tailored response. If thats not an option and you don’t have a partner to confer with, consider retaining an experienced trial lawyer in your location to advise you. Sometimes problems look different to a dispassionate person than they do to someone in the middle of the action.
One last thing. This isn’t your fault. Anyone who tries cases for a living sees this situation from time to time. You have to look forward, play the hand you’re holding, and make sure that any risk created by this development doesn’t implicate your license. That’s your North Star.
Is it the kind of fact that doesn't need to be disclosed? I mean, there's no duty to disclose everything. But if it would affect a prior response to a discovery request, then yeah you have a duty to correct the record. And tell your client this is why you need to know everything — because you can't do your job unless you have all the facts.
And yes, settling is likely to be a stronger option now.
This is not a big deal. People who are liable deserve a defense.
There are two issues at trial. Liability. And damages. You can more than adequately represent your client by mitigating damages.
Optimistically, they go first. If they don’t bring it up, you have zero professional obligation to bring it up. Your professional obligation is to not lie.
I’m working on an MSJ right now where they asked for no discovery. We could find the answers that would determine whether we’re liable. But we’re under no obligation to prove their case against us. So we’re arguing their evidence is insufficient, without doing their discovery for them and without lying.
Underlying several other responses here, we don't get to choose the actual facts. We get to write everything else. As a lawyer, we are advocates, and it sucks to have a theory and then find an issue. But being a lawyer is about winning on the circumstances (factual and legal) as they stand-- that's creativity, but you can't cheat. Or as lame as it may be in high school terms, I and my colleagues and peers honor the ethics of our profession and our persons. I've known this struggle in my own career. I've lost a night's sleep over considering the effects and new strategies, but I've chosen to do the right thing, always in as strategic a way as ethics permits.
As someone else posted it's your license.
Please deal, baby. Plea deal.
What representations have already been made to the court or in sworn discovery?
File a motion to withdraw immediately and set the hearing stating irreconcilable differences. Let the client know of the SOL and walk away.
Respectfully, there is not even close to enough information here to recommend this action.