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Facilitator's Guide - Administrative Law Case Study (The Inconsistent Witness)

Opening Paragraph

It was 3 p.m. on Friday November 9, 2018 and Philippa Enchin, acting for the union at an arbitration hearing of a grievance regarding scheduling, was in the middle of her direct examination of the client representative, local president, Jesse McCoy.  When Philippa asked Jesse to identify an email that the employer sent to the union, which she planned to introduce as an exhibit, he flatly denied ever having seen it.  After Philippa concluded her examination, the arbitrator called for a break, giving her 15 minutes to decide what to do about Jesse’s testimony, which she knew was almost certainly erroneous.

Objectives

  1. This case is intended for a study group discussion session on professional responsibility in Administrative Law.
  2. Participants will be expected to put themselves in the position of the lawyer, Philippa Enchin in the case and to identify and analyze the legal, professional, and personal challenges she faces.
  3. Participants will also be expected to develop alternatives and an action plan for resolving the issues in accordance with the lawyer’s professional obligations under the Rules of Professional Conduct.
 
Rules of Professional Conduct
  • Definitions, r. 1.1-1, “client”
  • When Client an Organization, r. 3.2-3
  • Dishonesty, Fraud etc. by Client or Others r. 3.2-7
  • Dishonesty, Fraud, etc. when Client an Organization, r. 3.2-8
  • Confidential Information, r. 3.3-1
  • Mandatory Withdrawal, r. 3.7-7
  • Advocacy, rr. 5.1-1, 5.1-2(b),(e)
  • Disclosure of Error or Omission, r. 5.1-4, Commentary [1]
  • Communication with Witnesses Giving Evidence, r. 5.4-2
  • Integrity, r., 2.1-1

Suggested Discussion Questions
Assume that you are the lawyer in this case and answer the following questions with reference to the relevant Rules of Professional Conduct:
  1. Who is your client?  What is your relationship with the union and client representative, Jesse McCoy? 
  2. What information, if any, can you discuss with Jesse after concluding your direct examination prior to the start of his cross-examination?
  3. What should you do if you discover that your client is intentionally lying while on the witness stand?  Would your answer change if the client had innocently made an error in his/her recollection? 
  4. What obligation, if any, do you owe to the tribunal to advise them of your concerns regarding Jesse’s testimony?
  5. What should you do when your client is an organization and intends to or has acted dishonestly? 
  6. What, if anything, should you do if you discover after the hearing has ended that your client was dishonest?