Law.com has an interesting story involving this question: When you are defense counsel in a civil case who discovers the plaintiff's claim is fraudulent, when do you have a duty to disclose this to the trial court? Here are the facts: In April 2005, lawyers defending a medical malpractice case obtained video evidence that a woman claiming to have been paralyzed through a doctor's negligence, could walk. It wasn't until January 2007 that they disclosed this evidence to the trial court.
The plaintiff's lawyers have cried foul, noting:
"If they had shown that videotape to us, we wouldn't have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court's time," [John K.] Lawlor said. "I don't have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm."
Is Mr. Lawlor's protest genuine?
[After learning of the fraud] Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson's two depositions seeking to change her testimony.
What would you have done? So long as the defense lawyers disclosed their finding to the client (thus allowing the client to make to decision whether to incur further legal fees defending the action), I think they made the right choice. By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away.