Legal Ethics Question:

Is it ethical to try to admit a document you know is inadmissible, hoping either that the other side will fail to object, or that the judge will rule incorrectly? Is it ethical to try to remove a case to federal court that you know is not removable, hoping that the other players will be asleep at the switch?

Drug and Device Law blog wants to know.

My own view, putting aside the formal rules of professional conduct, is that attorneys' first obligation should be to the integrity of the legal system, and not to their clients' interests. Even so, I'm not sure I'd say "no" to either question, given that a yes answer means that incompetent attorneys who don't realize they are violating the rules would have an advantage over competent attorneys. [And beyond that, with regard to question 1, from a purely evidence law perspective, I'm not sure you can really say that there is such a thing as inadmissible evidence until there is an objection.]

I remember being conflicted when I heard after I left my firm that my clients had won a motion based on an argument I came up with. I told the partner in charge of the case that my argument "should be a loser, but it's the best we can do, and maybe the judge will buy it." The judge did. I was proud of my forensic skills, and happy that I helped my client, but disturbed that the legally "wrong" side won. I suppose that's why I'm better suited to professoring.