“A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. . . . As advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system.”[ii] In asserting the client’s position under the rules of the adversary system, complying with ethical rules is as important as is complying with procedural rules. Litigators thus should not interpret the responsibility to advocate zealously on behalf of their clients as a license to ignore applicable rules of conduct.

The Rules sometimes create tension between zealous advocacy and compliance, but a commentary to the Rules emphasizes a lawyer’s duty to follow the Rules. For example, Rule 1.3 – Diligence – provides that “A lawyer shall act with reasonable diligence and promptness in representing clients.”[iii] The commentary to the Rule delineates the boundary within which the lawyer should operate, noting that “[a] lawyer should . . . take whatever lawful and ethical measures are required to vindicate a client’s cause and endeavor.”[iv] While “[a] lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf[,] [a] lawyer is not bound . . . to press for every advantage that might be realized for a client.”[v]

Recent cases suggest that either lawyers are woefully ignorant of the requirements of the rules or do not fully appreciate the seriousness with which state bars and courts view a breach of the rules. See, e.g., Qualcomm, Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 911 (Jan. 7, 2008), vacated in part and remanded by Qualcomm, Inc. v. Broadcom Corp., 2008 U.S. Dist. LEXIS 16897 (S.D. Cal. Mar. 5, 2008);[vi] Gordon Partners. v. Blumenthal, 244 F.R.D. 179, 191 (S.D. N.Y. 2007) (A court has authority to impose sanctions on a party for discovery misconduct “under its inherent power to manage its own affairs or under Rule 37 of the Federal Rules of Civil Procedures.”).[vii] The range of sanctions for violating the Rules is broad, including referring the offending lawyer to the state bar for disciplinary action.

Qualcomm illustrates the peril of elevating zealous advocacy over compliance with the Rules. To be sure, skillful litigators may try to argue that the Judge in Qualcomm got it wrong, or that the ethical rules discussed in this article are not applicable. Irrespective of whether one agrees with the conclusions reached in Qualcomm, the facts of the case serve as a useful backdrop for emphasizing the importance of a litigator making the Rules a critical part of her toolbox and for discussing Rules that should be of concern to any litigator as she seeks to balance her responsibilities for zealous advocacy with her responsibilities as an officer of the legal profession and as a public citizen having a special responsibility for the quality of justice.

In Qualcomm, a patent infringement action, the Judge imposed an $8.5 million sanction on Qualcomm for “its monumental and intentional discovery violations.”[viii] She also sanctioned six of its “retained lawyers” and referred six lawyers to the California State Bar for appropriate investigation and possible disciplinary actions.[ix] The sanctions followed litigation in a suit in which Qualcomm alleged that Broadcom infringed its patent. Broadcom asserted as an affirmative defense that the patents were unenforceable because Qualcomm had participated in industry activities that resulted in a waiver of its rights to the contested patents (hereinafter “waiver activities”). It sought information during discovery to confirm its view. The conduct of Qualcomm’s counsel during discovery and trial contravened several of the Rules.[x]

Qualcomm produced two 30(b)(6) corporate designees without having performed the due diligence required by the Model Rules. The first designee had been “prepared” for her deposition, but counsel for Qualcomm had not searched her computer for any relevant documents or emails or provided her with information to review. Not surprising, she testified that Qualcomm had not participated in the critical waiver meeting. When Broadcom impeached her with a document showing the contrary, Qualcomm offered another 30(b)(6) deponent. Qualcomm’s counsel did not search the witness’ computer for relevant documents or take any other action to prepare him.

Presenting the corporate designees for depositions without having searched their computers for relevant documents or emails and without having provided them other documents to review raises the question of whether the lawyer met the basic obligation to serve the client competently, as required by Model Rule 1.1 – Competence – which provides that: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation.” Noting that major litigation normally requires more preparation than would a matter of lesser complexity, Comment 5 of the Rule provides that competence requires inquiring into the problem; following methods and procedures competent practitioners customarily follow; and preparing adequately. Even a junior litigator should know that preparing a corporate designee for deposition or trial should include a search of the designee’s files, including computer files, and a review of relevant documents with the designee.

Competence includes the lawyer’s ability to spot issues and ask the right questions. To comply with electronic discovery requirements, lawyers need to work with information technology specialists and other experts to understand the responding party’s computer system and how data is maintained and stored. See Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 324 (S.D.N.Y. 2003).

A lawyer’s obligation to probe the witness about documents and to review documents with the witness as components of deposition preparation also flows from Rule 1.3, which requires lawyers to “act with reasonable diligence and promptness in representing clients.” As noted earlier, inherent in acting with diligence is a “commitment and dedication to the interest of the client.”[xi] The interest of the client includes making sure the client representative has been thoroughly prepared; being aware of and thoroughly familiar with all relevant documents, including potentially damaging documents; and having a plan for handling such documents. Destroying or unreasonably denying access to potentially damaging documents should not be a part of any plan. There would have likely been a very different outcome in Qualcomm had Qualcomm legitimately contested production of the documents at issue in the case. This could have been done, for example, through a motion to quash or limit production of the requested documents on the basis of attorney-client or work product privileges, or because of the duty to maintain client confidences. Legitimate concerns about protecting confidential documents could have been addressed by a protective order.

Qualcomm’s response and tactics in responding to written discovery suggest that it did not seek to withhold the documents legitimately. Counsel’s failure to produce the documents thus violated the Rules and leads to the ineluctable conclusion that their failure to search employees’ computers prior to producing corporate designees for deposition was by design.[xii] Even after Broadcom attempted to impeach the second 30(b)(6) corporate designee with a document showing an email address for a Qualcomm official who would have participated in waiver activities, Qualcomm apparently made no concerted effort to search for requested documents.[xiii]

Rather, as the case progressed, Qualcomm became increasingly aggressive in asserting that it had not participated in the critical waiver activities. For example, Qualcomm filed in court an expert declaration stating that there were no corporate records to indicate its participation in waiver activities. Further, arguing that the appearance of a Qualcomm official’s email address on the waiver group list did not establish receipt of any waiver-related information or other participation with the waiver group, Qualcomm filed various pleadings in court arguing that the “facts demonstrate” Qualcomm had not participated in the waiver meetings.[xiv]

Qualcomm’s lack of diligence went further. During preparation of a witness for trial, counsel discovered an email that seemed directly responsive to a document request. Afterwards, he searched the client’s computer and discovered 21 additional emails, none of which counsel had produced in discovery. The trial team, however, decided not to produce the newly discovered emails to Broadcom, although the emails undermined Qualcomm’s argument that it had not participated in the waiver meeting. Moreover, Qualcomm did not conduct further investigations to determine if there were other emails that had not been produced.[xv] More troubling, a few days later counsel essentially misrepresented facts to the Court. At a sidebar discussion with the judge, counsel for Qualcomm argued that the list of email addresses used by Broadcom to try to establish waiver participation was “just a list of email addresses,” and that there was no evidence that Qualcomm had received emails. Not one of Qualcomm’s attorneys at the sidebar mentioned the discovery a few days earlier of the 21 emails.[xvi]

By failing to produce the requested documents and by arguing in Court that there were no documents to support Broadcom’s view of Qualcomm’s waiver activities, Qualcomm’s counsel breached their duty to the tribunal and to a non-client. Rule 3.3(a)(1) – Candor towards the Tribunal – provides that, “A lawyer shall not knowingly: make 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.” By not informing the Court during the sidebar of the newly discovered relevant documents, counsel for Qualcomm violated this Rule.[xvii] Given that counsel was aware of the discovery of 21 emails that had not been produced, counsel knowingly made a false statement of fact to the tribunal. “There are circumstances where a failure to make a disclosure is the equivalent of an affirmative misrepresentation.”[xviii]

Counsel not only made a false statement to the Court, they offered false evidence in violation of Section 3.3(a)(3) of the Rule, which provides that “[a] lawyer shall not knowingly offer evidence that the lawyer knows to be false.” When Qualcomm’s counsel filed declarations and memoranda asserting that there was no evidence to demonstrate its participation in the waiver activities, it offered false evidence.[xix] Even if counsel argues that Qualcomm insisted that they offer the evidence, this section prohibits the lawyer from offering evidence he knows to be false, regardless of the client’s wishes.[xx]

By strictly enforcing this Rule, lawyer regulatory agencies demonstrate their commitment to making lawyers recognize and honor their duties as officers of the Court as well as the agencies’ commitment to regulating conduct that would undermine the system of justice.

Rule 3.4(a) provides that a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.” Section 3.4(d) of the Rule provides that in pretrial procedure, a lawyer shall not “fail to make reasonably diligent effort to comply with a legally proper discovery request by the opposing party.” It is difficult to imagine more blatant violations of this Rule. Assuming for the sake of argument that Qualcomm’s counsel had a good faith basis for not searching further and producing documents after Broadcom confronted the second corporate designee with a document showing that the name of a Qualcomm official was on the email list of waiver participants, counsel could not be given that benefit of the doubt after the trial witness’ computer was searched and over 20 relevant documents were discovered. Rather than make an effort to comply with their ethical and procedural obligations, counsel, in the words of the Court, continued their “gamesmanship.”

Qualcomm’s counsel also arguably violated Rule 4.1 – Truthfulness in Statements to Others, which provides that a lawyer shall not knowingly “make a false statement of material fact or law to a third person.” The operative terms are “knowingly” and “material fact.” As discussed earlier, given counsel’s knowledge of the discovery of the 21 emails, the “knowingly” prong of this Rule is met. Further, as the Court observed, considering that the issue of whether Qualcomm participated in waiver activities during the contested time frame was crucial to the litigation, statements about that participation would constitute a material fact. Accordingly, Qualcomm’s counsel’s statement to Broadcom that it had no evidence to demonstrate that it participated in the waiver activities would constitute a violation of Rule 4.1. Finally, counsel’s acts and omissions constitute misconduct under Rule 8.4 – Misconduct, commonly referred to as the “catch all” Rule. Qualcomm’s counsel’s failure to inform the Court of the discovery of relevant documents and their argument in Court (including through the filing of declarations and motions) that Qualcomm had no records to support Broadcom’s assertion that the patents were unenforceable involved dishonesty and deceit or misrepresentations and also were prejudicial to the administration of justice.[xxi] Qualcomm’s failure to search for and produce relevant documents, and its failure to prepare its witnesses for depositions were prejudicial to the administration of justice.[xxii]

In conclusion, lawyers who ignore ethical rules face serious sanctions, up to and including disbarment.