Rule 3.3 Candor Toward the Tribunal
Background.
Some of the Rules of Professional Responsibility are designed to protect the
interests of the client. These rules make the interests of the client paramount to
other competing interests.
Rule 3.3, seeks to protect the truth-seeking function of the court and to
preserve the integrity of the judicial process. For these purposes the interests of
the client are made subordinate to those of protecting the judicial process. Other
rules also address aspects of protecting the integrity of the judicial process, such
as Rule 3.8, which makes it a duty of the prosecutor to do justice and not bring
charges that are not supported by probable cause, and Rule 3.1, which makes it a
lawyer’s duty to bring only meritorious claims.
We turn now to an examination of Rule 3.3.
The Rule.
Advocate
Rule 3.3 Candor Toward the Tribunal
A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false
statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to
the lawyer to be directly adverse to the position of the client and not disclosed by opposing
counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a
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witness called by the lawyer, has offered material evidence and the lawyer comes to know
of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony
of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent conduct
related to the proceeding shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts
known to the lawyer that will enable the tribunal to make an informed decision, whether or
not the facts are adverse.
Comment
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings
of a tribunal. See Rule 1.0(n) for the definition of "tribunal." It also applies when the lawyer
is representing a client in an ancillary proceeding conducted pursuant to the tribunal's
adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(3) requires a
lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is
testifying in a deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct
that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in
an adjudicative proceeding has an obligation to present the client's case with persuasive
force. Performance of that duty while maintaining confidences of the client, however, is
qualified by the advocate's duty of candor to the tribunal. Consequently, although a lawyer in
an adjudicative proceeding is not required to present an impartial exposition of the law or to
vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be
misled by false statements of material fact or law or evidence that the lawyer knows to be
false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for litigation, but
is usually not required to have personal knowledge of matters asserted therein, for litigation
documents ordinarily present assertions by the client, or by someone on the client's behalf,
and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be
on the lawyer's own knowledge, as in an affidavit by the lawyer or in a statement in open
court, may properly be made only when the lawyer knows the assertion is true or believes it
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to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure
to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation
prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a
fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that
Rule. See also Rule 8.4(b), Comment.
Legal Argument
[4] Legal argument based on a knowingly false representation of law constitutes dishonesty
toward the tribunal. A lawyer is not required to make a disinterested exposition of the law,
but must recognize the existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the
controlling jurisdiction that has not been disclosed by the opposing party. The underlying
concept is that legal argument is a discussion seeking to determine the legal premises
properly applicable to the case.
Offering Evidence
[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to
be false, regardless of the client's wishes. This duty is premised on the lawyer's obligation as
an officer of the court to prevent the trier of fact from being misled by false evidence. A
lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of
establishing its falsity.
[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce
false evidence, the lawyer should seek to persuade the client that the evidence should not be
offered. If the persuasion is ineffective and the lawyer continues to represent the client, the
lawyer must refuse to offer the false evidence. If only a portion of a witness's testimony will
be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the
witness to present the testimony that the lawyer knows is false.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel
in criminal cases. See Comment [9].
[8] The prohibition against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer's reasonable belief that evidence is false does not preclude its
presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be
inferred from the circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve
doubts about the veracity of testimony or other evidence in favor of the client, the lawyer
cannot ignore an obvious falsehood.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer
knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the
lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer's
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ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as
an advocate. Because of the special protections historically provided criminal defendants,
however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client
where the lawyer reasonably believes but does not know that the testimony will be false.
Unless the lawyer knows the testimony will be false, the lawyer must honor the client's
decision to testify. See also Comment [7].
Remedial Measures
[10] Having offered material evidence in the belief that it was true, a lawyer may
subsequently come to know that the evidence is false. Or, a lawyer may be surprised when
the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer
knows to be false, either during the lawyer's direct examination or in response to crossexamination by the opposing lawyer. In such situations or if the lawyer knows of the falsity
of testimony elicited from the client during a deposition, the lawyer must take reasonable
remedial measures. The lawyer's action must also be seasonable: depending upon the
circumstances, reasonable remedial measures do not have to be undertaken immediately,
however, the lawyer must act before a third party relies to his or her detriment upon the false
testimony or evidence. The advocate's proper course is to remonstrate with the client
confidentially, advise the client of the lawyer's duty of candor to the tribunal and seek the
client's cooperation with respect to the withdrawal or correction of the false statements or
evidence. If that fails, the advocate should seek to withdraw if that will remedy the situation.
If withdrawal from the representation is not permitted or will not undo the effect of the false
evidence, the advocate's only option may be to make such disclosure to the tribunal as is
reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by Rule 1.6. It is for the tribunal then to
determine what should be done - making a statement about the matter to the trier of fact,
ordering a mistrial or perhaps nothing.
[11] The disclosure of a client's false testimony can result in grave consequences to the
client, including not only a sense of betrayal but also loss of the case and perhaps a
prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the
court, thereby subverting the truth-finding process which the adversary system is designed to
implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will
act upon the duty to disclose the existence of false evidence, the client can simply reject the
lawyer's advice to reveal the false evidence and insist that the lawyer keep silent. Thus the
client could in effect coerce the lawyer into being a party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent
conduct that undermines the integrity of the adjudicative process, such as bribing,
intimidating or otherwise unlawfully communicating with a witness, juror, court official or
other participant in the proceeding, unlawfully destroying or concealing documents or other
evidence or failing to disclose information to the tribunal when required by law to do so.
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Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including
disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's
client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related
to the proceeding.
[13] The general rule that an advocate must reveal the existence of perjury with respect to a
material fact-even that of a client-applies to defense counsel in criminal cases, as well as in
other instances. However, the definition of the lawyer's ethical duty in such a situation may
be qualified by constitutional provisions for due process and the right to counsel in criminal
cases. These provisions have been construed to require that counsel present an accused as a
witness if the accused wishes to testify, even if counsel knows the testimony will be false.
The obligation of the advocate under these Rules is subordinate to such a constitutional
requirement.
Duration of Obligation
[14] A practical time limit on the obligation to rectify false evidence or false statements of
material fact or law has to be established. The conclusion of the proceeding is a reasonably
definite point for the termination of the obligation. A proceeding has concluded within the
meaning of this Rule when no matters in the proceeding are still pending before the tribunal
or the proceeding has concluded pursuant to the rules of the tribunal such as when a final
judgment in the proceeding is affirmed on appeal, a bankruptcy case is closed, or the time for
review has passed.
Ex Parte Proceedings
[15] Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party. However, in any ex parte proceeding, such as
an application for a temporary restraining order, there is no balance of presentation by
opposing advocates. The object of an ex parte proceeding is nevertheless to yield a
substantially just result. The judge has an affirmative responsibility to accord the absent party
just consideration. The lawyer for the represented party has the correlative duty to make
disclosures of material facts known to the lawyer and that the lawyer reasonably believes are
necessary to an informed decision.
Withdrawal
[16] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does not
require that the lawyer withdraw from the representation of a client whose interests will be or
have been adversely affected by the lawyer's disclosure. The lawyer may, however, be
required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's
compliance with this Rule's duty of candor results in such an extreme deterioration of the
client-lawyer relationship that the lawyer can no longer competently represent the client.
Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a
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tribunal's permission to withdraw. In connection with a request for permission to withdraw
that is premised on a client's misconduct, a lawyer may reveal information relating to the
representation only to the extent reasonably necessary to comply with this Rule or as
otherwise permitted by Rule 1.6.
History Note: Statutory Authority G. 84-23
Adopted July 24, 1997; Amended March 1, 2003.
ETHICS OPINION NOTES
CPR 92. An attorney who knows that criminal clients gave arresting officers fictitious names
should call upon the clients to disclose their true identities to the court and, if they refuse,
seek to withdraw. ( See also Rule 3.3(a)(3))
CPR 122. An attorney representing the defendant in divorce action, when advised by the
client that parties have not been separated a year, must file an answer denying the allegation
of separation even though the client does not wish to contest the divorce.
CPR 284. An attorney may seek alimony for a wife although he has evidence of the wife's
adultery so long as he does not have to offer perjured testimony or other false evidence.
RPC 33. If an attorney's client testifies falsely regarding a material matter, such as his or her
name or criminal record, the attorney must call upon the client to correct the testimony. If the
client refuses, the attorney must seek to withdraw in accordance with the rules of the tribunal.
( See also Rule 3.3(a)(3))
RPC 203. Dismissal of an action alone is not sufficient to rectify the perjury of a client in a
deposition and the lawyer must demand that the client inform the opposing party of the
falsity of the deposition testimony or, if the client refuses, withdraw from the representation.
( See also Rule 3.3(a)(3))
98 FEO 1. Opinion rules that a lawyer representing a client in a social security disability
hearing is not required to inform the administrative law judge of material adverse facts
known to the lawyer.
98 FEO 5. Opinion rules that a defense lawyer may remain silent while the prosecutor
presents an inaccurate driving record to the court provided the lawyer and client did not
criminally or fraudulently misrepresent the driving record to the prosecutor or the court, and
further provided, that on application for a limited driving privilege, there is no
misrepresentation to the court about the client's prior driving record.
98 FEO 20. Opinion rules that, subject to a statute prohibiting the withholding of the
information, a lawyer's duty to disclose confidential client information to a bankruptcy court
ends when the case is closed although the debtor's duty to report new property continues for
180 days after the date of filing the petition.
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99 FEO 16. Opinion rules that a lawyer may not participate in the presentation of a consent
judgment to a court if the lawyer knows that the consent judgment is based upon false
information.
2001 FEO 1. Opinion rules that, in a petition to a court for an award of an attorney's fee, a
lawyer must disclose that the client paid a discounted hourly rate for legal services as a result
of the client's membership in a prepaid or group legal services plan.
CASE NOTES
Preparation of Witness. - It is not improper for an attorney to prepare his witness for trial, to
explain the applicable law in any given situation and to go over before trial the attorney's
questions and the witness' answers so that the witness will be ready for his appearance in
court, will be more at ease because he knows what to expect, and will give his testimony in
the most effective manner he can. Such preparation is the mark of a good trial lawyer, and is
to be commended because it promotes more efficient administration of justice and saves
court time. Nothing improper occurs so long as the attorney prepares the witness to give the
witness' testimony at trial and not the testimony that the attorney has placed in the witness'
mouth or false or perjured testimony. State v. McCormick , 298 N.C. 788, 259 S.E.2d 880
(1979).
Client Perjury. - Where an attorney learns, prior to trial, that his client intends to commit
perjury or participate in the perpetration of a fraud upon the court he must withdraw from
representation of the client, seeking leave of the court, if necessary. The right of a client to
effective counsel in any case (civil or criminal) does not include the right to compel counsel
knowingly to assist or participate in the commission of perjury or the creation or presentation
of false evidence. In re Palmer , 296 N.C. 638, 252 S.E.2d 784 (1979).
Concealment of Material Facts. - Intentionally encouraging the concealment of material facts
relevant to the identity of the driver in a driving under the influence prosecution is prejudicial
to the administration of justice. Such conduct raises serious doubts as to the attorney's desire
to bring about a just result in such a prosecution and adversely reflects on the attorney's
fitness to practice law. North Carolina State Bar v. Graves , 50 N.C. App. 450, 274 S.E.2d
396 (1981).
Failure to Inform Court of Opposing Party's Address. - An attorney clearly engaged in
conduct involving fraud, dishonesty, deceit and misrepresentation when, in a divorce action,
she failed to inform the court of a letter which contained the opposing party's return address,
while at the same time presenting to the court an affidavit she had drafted in which her client
swore that her husband's whereabouts were unknown and could not with due diligence be
ascertained. North Carolina State Bar v. Wilson , 74 N.C. App. 777, 330 S.E.2d 280 (1985).
Quoted in Brooks v. Wal-Mart Stores, Inc. , 139 N.C. App. 637, 535 S.E.2d 55 (2000).
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Cross-references:
Rule 1.6, to which reference is made in Rule 3.3(a)(3) and Comment [16], provides:
“Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information acquired during the professional relationship with a
client unless the client gives informed consent, the disclosure is impliedly authorized in
order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information protected from disclosure by paragraph (a) to the
extent the lawyer reasonably believes necessary:
(1) to comply with the Rules of Professional Conduct, the law or court order;
(2) to prevent the commission of a crime by the client;
(3) to prevent reasonably certain death or bodily harm;
(4) to prevent, mitigate, or rectify the consequences of a client's criminal or fraudulent act
in the commission of which the lawyer's services were used;
(5) to secure legal advice about the lawyer's compliance with these Rules;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the
lawyer and the client; to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved; or to respond to allegations
in any proceeding concerning the lawyer's representation of the client; or
(7) to comply with the rules of a lawyers' or judges' assistance program approved by the
North Carolina State Bar or the North Carolina Supreme Court.
(c) The duty of confidentiality described in this Rule encompasses information received
by a lawyer then acting as an agent of a lawyers' or judges' assistance program approved
by the North Carolina State Bar or the North Carolina Supreme Court regarding another
lawyer or judge seeking assistance or to whom assistance is being offered. For the
purposes of this Rule, "client" refers to lawyers seeking assistance from lawyers' or
judges' assistance programs approved by the North Carolina State Bar or the North
Carolina Supreme Court.”
Rule 1.0(n), to which reference is made in Comment [1], provides:
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“(n) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative
body, administrative agency or other body acting in an adjudicative capacity. A legislative body,
administrative agency or other body acts in an adjudicative capacity when a neutral official, after
the presentation of evidence or legal argument by a party or parties, may render a binding legal
judgment directly affecting a party's interests in a particular matter.”
Rule 3.1, to which reference is made in Comment [3], provides:
“Rule 3.1 Meritorious Claims and Contentions
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous, which includes a good faith
argument for an extension, modification or reversal of existing law. A lawyer for the defendant
in a criminal proceeding, or the respondent in a proceeding that could result in incarceration,
may nevertheless so defend the proceeding as to require that every element of the case be
established.”
Rule 1.2(d), to which reference is made in Comment [3], provides:
“(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer
knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any
proposed course of conduct with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning or application of the law.”
Rule 8.4(b), to which reference is made in Comment [3], provides:
“It is professional misconduct for a lawyer to:
...
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or
fitness as a lawyer in other respects; . . .”
Rule 1.0(g), to which reference is made in Comment [8], provides:
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“g) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.”
Rule 1.16 (a) and (b), to which reference is made in Comment [16], provides:
“Rule 1.16 Declining or Terminating Representation
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of law or the Rules of Professional Conduct;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to
represent the client; or
(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client
if:
(1) withdrawal can be accomplished without material adverse effect on the interests of
the client; or
(2) the client knowingly and freely assents to the termination of the representation; or
(3) the client persists in a course of action involving the lawyer's services that the lawyer
reasonably believes is criminal or fraudulent; or
(4) the client insists upon taking action that the lawyer considers repugnant, imprudent, or
contrary to the advice and judgment of the lawyer, or with which the lawyer has a
fundamental disagreement; or
(5) the client has used the lawyer's services to perpetrate a crime or fraud; or
(6) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services and has been given reasonable warning that the lawyer will withdraw
unless the obligation is fulfilled; or
(7) the representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or
(8) the client insists upon presenting a claim or defense that is not warranted under
existing law and cannot be supported by good faith argument for an extension,
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modification, or reversal of existing law; or
(9) other good cause for withdrawal exists. . . . “
The forgoing text of Rule 3.3 and its comments, and other rules quoted above, as well as the
ethics opinion notes and the case notes are copyrighted property of The North Carolina State Bar.
Illustrative Questions:
Question 1. You are the Town Attorney of the Town of Dry Lake, NC. You are also
the current Grand Antler [i.e., President] of the Dry Lake Loyal Order of the
Wildebeast.
You have been invited, in your capacity as Grand Antler, to appear at a
meeting of the Board of County Commissioners to make a surprise presentation
of the coveted Wildebeast of the Year Award to one of the members of the Board.
You deck yourself out in your finest Wildebeast robes and headdress and
take your seat, in the audience of the Board’s meeting, to wait for your turn on
the agenda. While you are waiting, the Board takes up a controversial zoning case
involving a proposed major development on property which is adjacent to the
watershed of the Town’s primary water reservoir.
To your surprise, the Town’s Director of Public Works takes the podium,
during the public hearing phase of the rezoning case, and blasts the proposed
rezoning. His remarks are very popular with the large group of citizens in the
audience, who are there to oppose the rezoning, but his remarks are also untrue
on several important points.
What action, if any, are you required to take under Rule 3.3?
Analysis: There may be many reasons for you to take some action, such as a quick
conference with the Public Works Director in the hallway, but none are mandated
by Rule 3.3. The Board is sitting in a legislative capacity, dealing with a rezoning
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case, and therefore is not a “tribunal”, as that term is used in Rule 3.3. See the
definition of “tribunal” in Rule 1.0(n).
Note also, Comment *1+, which says, in part, that “This rule governs the conduct
of a lawyer who is representing a client in the proceedings of a tribunal.” Whether
a lawyer may be said to be always “on duty”, when present only for a personal
matter, may depend upon the nature of the lawyer’s relationship with his or her
public client.
Question #2. The Town of Dry Lake, whom you still represent, has been sued for
damages which the plaintiff alleges were suffered when the plaintiff was wrestled
to the ground during an arrest by Town police. You are attending a deposition of
the Town’s Police Chief, a man known for his fiery temper. Plaintiff’s lawyer’s
aggressive questioning makes the Police Chief angrier and angrier. In answer to
several questions, having to do with department policy, the Chief makes several
heated but untrue answers on important issues.
To your great relief, Plaintiff’s counsel asks if the deposition can be recessed for a
couple of days in order for his client to catch a plane out of town for an
unexpected family emergency. Plaintiffs ask to reconvene in the morning three
days hence, when they expect their client to be back. You readily agree to the
recess. You immediately ask the Chief to step into the hall way with you and there
you confront him about his untrue testimony. He angrily tells you that he doesn’t
intend to help the plaintiff or his lawyer get a penny out of his officer or the Town
and then turns and leaves in a huff.
You return to the deposition room and find plaintiff’s counsel still there packing
up his briefcase. Plaintiff has left for the airport.
Does Rule 3.3 compel you to disclose the untruth of the Chief’s deposition to
plaintiff’s counsel?
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Analysis: Rule 3.3 may very well require disclosure but it doesn’t necessarily
require it now. Here, plaintiff has left to go out of town, the deposition is to
reconvene in two days and it is unlikely that plaintiff will rely on the untrue
testimony to his detriment in the meantime. During the intervening time, you
may have an opportunity to meet with the Chief and convince him of the
necessity of correcting his testimony when the deposition begins again. See
Comment [10]
Note that under Comments [15] and [16] of Rule 1.6 [Confidentiality of
Information], “Where practicable, a lawyer should first seek to persuade the
client to take suitable action to obviate the need for disclosure” and,“ When
practical, the lawyer should first seek to persuade the client to take suitable
action, making it unnecessary for the lawyer to make any disclosure.”
But, note further, that Comment [1] of Rule 3.3 makes it clear that the Rule
applies to ancillary proceedings such as a deposition.
Question #3. Assume the same facts presented in Question #2.
On the morning after the deposition is recessed, you receive a call from the Police
Chief. He has cooled down in the interim and apologizes for his actions the day
before. He readily agrees to your contacting plaintiff’s counsel and also agrees to
correct his testimony when the deposition reconvenes.
As luck would have it, you then receive a call from the Judge’s office
informing you that the Judge has granted your motion to dismiss the case.
Are you off the hook under Rule 3.3? Does the judge’s action in dismissing
the case mean that you have no further obligation to notify plaintiff’s counsel
concerning the errors in the Chief’s deposition testimony?
Analysis: The obligation to rectify the false evidence continues to the conclusion
of the proceeding. Here, plaintiff has a right to appeal from the Judge’s decision
and the time for appeal has not yet run. The obligation continues. See Comment
[14].
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See also, RPC 203, which holds that dismissal may not be sufficient to rectify false
testimony. Head note of RPC says:
“Opinion rules that dismissal of an action alone is not sufficient to rectify
the perjury of a client in a deposition and the lawyer must demand that
the client inform the opposing party of the falsity of the deposition
testimony or, if the client refuses, withdraw from the representation.”
Question #4. You have been asked by your Parks Director, and authorized by your
Town Council, to take such action as may be necessary to protect a stand of
beautiful and historic Elm trees, in a Town park, from the land-clearing operations
of a developer of neighboring property. Your Parks Director advises you that the
developer’s bulldozers have strayed onto park property on several occasions and
have damaged the root systems of several of the largest trees. You file suit and
ask for a temporary restraining order to restrict further bulldozing within 100 feet
of park property. You meet with the Judge, in her chambers, to discuss the TRO.
The developer’s attorney is not present. Shortly before the meeting with the
judge, the Parks Director tells you that many of the Elm trees have contracted a
disease which makes it very unlikely that many of the trees will survive beyond
the current growing season. Are you obliged, under Rule 3.3, to tell the Judge
about this unhappy situation?
Analysis: The potential shortened tree life, due to the disease, would appear to
be a material fact in the Judge’s consideration of the interests of the parties. Since
the meeting with the Judge is ex parte, Rule 3.3(d) requires disclosure of this
information, even though it is information favorable to the other side. See also
Comment [15].
Question #5. Same facts as in Question #4. You inform the Judge of the disease
in the trees but she grants your request for a TRO anyway and sets a hearing on
the preliminary injunction 7 days hence. In the days leading up to the hearing, you
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are contacted by a representative of a neighborhood group who offers her help
and that of other members of the neighborhood association. You meet with
several of the neighbors and prepare affidavits for several. The group’s leader
arranges to deliver and collect the affidavits from the Members with whom you
met. Shortly before the hearing you meet with some of the group’s leaders and
go over the affidavits. During your discussion, an argument breaks out when one
of the members begins insisting that one of the affidavits is wrong. The other
three group members insist that the affidavit is correct. The maker of the affidavit
is unavailable for immediate contact. It’s a good affidavit and you really want to
use it. Under the circumstances, does Rule 3.3 prohibit you from introducing the
affidavit? [Disregard any procedural issues]
Analysis: Rule 3.3 applies in this case only if the lawyer knows the affidavit is false
or knowledge of its falsity can be reasonably inferred from the circumstances.
Here, it is unlikely that the lawyer knows that the affidavit is false, if indeed it is.
Note that “knowingly”, “known” and “knows” are words included in the
terminology section of Rule 1.0.
Rule 1.0(g) provides”
“(g) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in
question. A person's knowledge may be inferred from circumstances.”
Question # 6. Same facts as in Questions #4 and #5. You exchange briefs with
opposing counsel before the hearing on the TRO. You are troubled by one of his
assertions concerning the lead case in the jurisdiction. You recheck the case and
discuss it with David Lawrence at the School of Government. You are convinced
that opposing counsel is not only wrong, but blatantly wrong in his assertion. You
call opposing counsel and tell him of your concerns. He thanks you for your call
and promises to think about your points concerning the case. You are surprised
15
when, at the hearing, he argues the same case in the same way he presented it in
his brief. Has your opponent violated Rule 3.3?
Analysis: If opposing counsel is knowingly making a false statement to the judge
concerning the case, then a violation of Rule 3.3 occurs. It is difficult, however,
from the limited facts presented here, to know whether such a violation occurred.
Practice Pointers:
1) As part of your preparation of a witness for trial, for deposition or for any
other judicial proceeding, explain to the witness that perjury is a serious
crime and that you are bound by the Rules of Professional Conduct which
allow and, in some cases, may require you to disclose false testimony to the
court.
2) Err on the side of disclosing too much, rather than too little, during an ex
parte proceeding, when you don’t know whether a fact or facts will help
the tribunal make an informed decision.
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