Ethical Pitfalls of Requests for Admission

Ethical Pitfalls of Requests for Admission
Colin E. Flora

florablog
Colin E. Flora
Associate Civil Litigation Attorney
Pavlack Law, LLC

Among the familiar litigation discovery tools is an often-overlooked device that lends itself to ethical challenges.  Embodied in Federal Rule of Civil Procedure 36 and in various state procedures, requests for admission permit a litigant to convert disputed and inaccurate factual assertions into settled issues in litigation.  As a result, requests for admission can completely end a case through a simple misstep.  The temptation for abuse is often curbed only by adherence to ethical obligations.  The reluctance of courts to address ethical concerns and the deference of disciplinary bodies to courts in policing litigation alongside historical tensions between the adversarial posture of litigation and cooperative duties in discovery, however, have left practitioners often crossing ethical lines in ignorance that they would never dare to traverse if the matter was considered in light of their professional duties.

In modern litigation, discovery is often the most laborious and resource–consuming portion, but that was not always so.  The foundations of American legal tradition stem from adjudication by combat, both literal and metaphorical.  In a purely combative system, cooperative exchanges of information were repugnant.  As a mid-twentieth-century opinion by Justice Robert Jackson observed, “[Counsel’s position is based] on the view that the [Discovery] Rules were to do away with the old situation where a law suit developed into ‘a battle of wits between counsel.’  But a common law trial is and always should be an adversary proceeding.”  Although Justice Jackson’s critique was in the context of the work-product doctrine––a doctrine alive and well today––the angle of his perspective reveals a cultural view shared by many in the transition from the common law tradition of circumscribed discovery to the expansive discovery practice of today.  That view of a lawsuit as gladiatorial combat contrasts with the view of discovery espoused by commentators and several courts, that of cooperation.

The modern federal discovery rules, mirrored in many states, were the product of the Federal Rules of Civil Procedure adopted in 1938.  Among them is Rule 36, which allows service of written requests to another party to admit factual assertions.  Typically known as requests for admission, the power of the tool comes from its decisiveness.  Once admitted, the proposition is conclusively established unless withdrawal is permitted.  What drives requests for admission into ethical quagmire is that a request is deemed admitted if not timely denied.  Consequently, requests pose the grave potential for irrefutably establishing false facts and forcing unjust resolution of matters as a result.

The most frequent abuses of requests for admission can be arranged into three categories: (1) requests that are propounded in bad faith; (2) requests whose magnitude is unreasonable; and (3) requests that the requesting party could not have reasonably expected the responding party to admit.  As to the first category, abuse is typically found where the motive for promulgating the requests is a transparent attempt to circumvent a determination on the actual merits.  A common example arises when requests are sent with service of the initial filings­­, a practice now prohibited under the federal rules, but that remains permissible in many states and is even tried in federal courts despite the prohibition.  Another common example is when the requests are a mere rehashing of the complaint.  Because the responding party is already obliged to admit or deny the allegations, such requests for admission are often just an attempt to trigger a time-bomb.

The second category––an oppressive volume of requests––is also rife with abuse.  A handful of courts have enacted rules limiting the number of requests, often between twenty and thirty, however, even in courts without specific limitations, an implicit rule of reasonableness is imposed.  Nevertheless, it is not wholly uncommon for the number of requests to be in the hundreds or thousands.

Finally, abuse often occurs when the request seeks admission of an obviously contested fact.  As one court colorfully wrote, “Seeking an admission which assumes a contested fact is like asking a man to admit that he has stopped beating his wife.”  Such requests, with aspiration that they be overlooked and deemed admitted are, as a Wisconsin Justice wrote, little more than “a game, and its name [i]s ‘Gotcha.’”

Lawyers who fall prey to the tantalizing allure of abusive requests for admission expose themselves to professional discipline.   Although not an exhaustive list, abuses implicate Rules 1.1, 1.5, 3.1, 3.2, 3.4(d), 4.4(a), and the preamble to the Model Rules of Professional Conduct.  Rule 3.4(d)’s prohibition on frivolous discovery covers each category of routine abuse.  Similarly, Rule 4.4(a)’s dictate that lawyers shall not engage in conduct lacking “substantial purpose other than to embarrass, delay, or burden” is well applied when a litigant uses requests for admission as either a trap for the unwary or as a mountain of labor with scant justifiable purpose.

Less traditionally associated with discovery abuses is Rule 3.1, which obliges an attorney to advance only meritorious claims and contentions.  When a request is used to subvert honest resolution in favor of artificial facts, then a substantial danger of prosecution of a non-meritorious position arises.

Less obviously, Rules 1.1 and 1.5 also constrain abusive requests.  When an attorney takes action in clear violation of settled law, she violates Rule 1.1’s obligation of competent representation.  Ready examples are sending a greater number of requests than are permitted by local rule and tendering requests alongside a complaint when prohibited from doing so.  A violation of Rule 1.5 may occur when an attorney promulgates requests expecting denials, because it serves no justifiable purpose other than to increase her own client’s bill.

Even were no other Model Rule violated, abusive requests undermine the spirit of the Model Rules, which is enshrined in its preamble.  As the Indiana Supreme Court wrote in applying the preamble to litigation conduct, “[L]awyers’ duties are found not only in the specific rules of conduct and rules of procedure, but also in courtesy, common sense and the constraints of our judicial system.”

Only by recognition of professional obligations and of the discovery tool’s proper uses can attorneys avoid requests for admission’s pitfalls.

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