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April 14, 2015

New York Law Journal

By: Joel Cohen

You’re a month from trial, and you need to get out of it. It’s not that you failed to “get it up front”—often a valid, although not well-received reason. If that alone were the problem, “ethically” you could probably tell the judge what’s at issue—although many judges would simply answer: “I’m not going to delay this case because you haven’t been paid, and then deal with a new lawyer who’s not ready.” Or maybe you and your client can’t agree—the client wants to testify, and you’re vehemently opposed, strategically. That too is something that—at least in the most general sense—you could air with the judge without fearing betrayal of your client’s confidence.

But, no. The problem is more complicated, and worse. Your client wants you to do something unethical—perhaps illegal. Maybe he wants you to ditch evidence or intimidate a witness out of—or into—testifying (in a particular way). Perhaps he demands that you sum up by specifically stating that he’s “innocent,” when you know that remark has no place in a summation—particularly before this judge.

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