Analyzing the inherent conflict posed by the use of an undefined mandate-“reasonable remedial measures”-leads to analysis of the even deeper, unresolvable conflicts in the primary steps prescribed by commentary: the client's narration of his own story, the lawyer's withdrawal from representation, and the lawyer's disclosure of the client's false evidence. Not all of the reasonable remedial measures protect both the client's confidentiality and the court's insistence on honesty, and none of them protects the lawyer from charges of impropriety. In the face of the utter failure of the Model Rules to accomplish their conflicting goals, the ABA's rules drafters should start over from the beginning with a clear-eyed view of which one goal is most important to them. They do not have to stay with the current failed regime. They could, instead, provide direct and defined rules that people of reasonable intelligence can understand and fulfill. Doing so is, at this point, the only way by which the ABA can maintain any credibility in its leadership position in the realm of legal ethics.
Susan E. Thrower,
Neither Reasonable nor Remedial: The Hopeless Contradictions of the Legal Ethics Measures to Prevent Perjury ,
58 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol58/iss4/4