F12-WA1

 

Effectively Explaining Rule 3.3 of Professional Conduct to Clients

In A Morally Unobjectionable Way

 

In his article in the New York Bar Journal, Jack Weinstein wrote, “The most difficult ethical dilemmas result from the frequent conflicts between the obligation to one's client and those to the legal system and to society. It is in this area that legal education has its greatest responsibility, and can have its greatest effects.”  Jack B. Weinstein, Educating Ethical Lawyers. New York State Bar Journal (1975).  Among other obligations, attorneys owe their client the duty to represent the client’s interests to the best of the attorney’s abilities.  At the same time, attorneys are officers of the court and are participants in the search for truth.  Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions. 64 Mich. L. Rev. 1469 (1996).  Comment two to the New York Rule of Professional Conduct 3.3 explains that the performance of the attorney’s duty to present her client’s case with persuasive force, while maintaining the confidences of the client, is qualified by the advocate’s duty of candor to court.

 

1. Explanations of Rule 3.3         

New York Rule of Professional Conduct 3.3 codifies one such duty that attorneys owe the court.  New York Rule 3.3, titled “Candor Toward the Tribunal,” prohibits attorneys from making a false statement of fact or law to a tribunal.[1]  NYRPC 3.3(a)(1).  New York Rule 3.3 also prohibits an attorney from failing to disclose a material fact to a tribunal when disclosure of said fact is necessary to avoid assisting her client in committing a criminal or fraudulent act.  NYRPC 3.3(a)(2).  The same rule prohibits attorneys from offering evidence to the tribunal that she knows is false.  NYRPC 3.3(a)(4).  If material evidence has been admitted, rule 3.3 requires the attorney to take reasonable remedial measures.  Id.  Such remedial measures include the attorney remonstrate with the client confidentially and advise or remind her of the attorney’s duty of candor toward the tribunal and to persuade the client to withdraw or correct the false statements or evidence.  NYRPC 3.3 comment [10].  If that fails the attorney must take further action and “make such disclosure to the tribunal as is reasonably necessary to remedy the situation,” even if doing so requires the attorney to reveal information that would otherwise be protected by the attorney-client confidentiality privilege.  Id.  The duty not to mislead the court continues to the conclusion of the proceedings.  NYRPC 3.3(b).  In applying this rule, the Supreme Court held in Nix v. Whiteside that “under no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony.” (emphasis added)  Nix v. Whiteside, 475 U.S. 157 (1986).

 

Stan’s Explanation of NYRPC 3.3

            Stan did a nice job of accurately and comprehensively explaining to Ms. Simon what activity NYRPC 3.3 both prohibits and requires.  Stan started his explanation by telling Ms. Simon that if he became “aware that you have some evidence you want to show to the court, and it’s false evidence, then I would do my best to try and get you not to . . . share that evidence.”  Stan 4:55 – 5:15.  This is an accurate, albeit somewhat incomplete, explanation of comment six to NYRPC 3.3 that requires the attorney to first attempt to persuade the client not to use the false evidence.  The comment goes on to say that if the attorney is unable to dissuade the client from using the evidence, and the attorney does not withdraw[2], the lawyer may refuse to offer the false evidence.  NYRPC 3.3 comment [6].  This refusal would take the form of the client taking the stand and giving her testimony without questions from her attorney. {Prof C: there was more explicit language in the pre-2012 comments to GRPC 3.3 that seemed to disapprove of this approach.}  Freedman, 64 Mich. L. Rev. 1469 (1996).  This is ineffective to the client’s interest because it signals to the tribunal that the testimony is false.  Id. 

 

            Stan went on to explain that if she did offer the evidence, he would “have to come up with a way of making sure that the court realized that that was false evidence.”  Stan 5:15 – 5:30.  Stan correctly did not include that the false evidence that she would offer must be material.  Comments to rule 3.3 require that evidence offered under the attorney’s misguided belief that it was true, but later found to be false, be material.  NYRPC 3.3 comment [10].  The comment does not require false testimony elicited by the attorney to be material to the case.  Id. {Prof C: I WOULD interpret comment [10] as referring to material evidence}The statement that he would have to “come up with a way of making sure that the court realized that that was false evidence,” was an effective way to explain in lay person’s terms his duty to take “reasonable remedial measures.”  NYRPC 3.3(a)(4). 

 

A more complete statement would include that his proper course of action would be to remind Ms. Simon of his duty of candor to the tribunal and try to get her to withdraw or correct the evidence.  If that did not work he would have to withdraw from representing her[3] or disclose to the tribunal facts that are reasonably necessary to remedy the situation.  NYRPC 3.3 comment [10].  For the sake of completeness and as a way to further persuade her in advance not to lie to the court, Stan should have told Ms. Simon that the rule may require him to tell the court that while he does not know where Gordon was, Ms. Simon does know that Gordon was not at home watching the Jets the night of the incident.

 

            If read with the intent to place the strictest requirements on attorneys who know their client intends to or does perjure herself, 3.3(a)(2) requires an attorney to blatantly tell the court when his client has lied.  New York Rule 3.3(a)(2) requires an attorney to disclose a material fact to the tribunal when disclosure is necessary to avoid assisting her client in committing a criminal or fraudulent act and perjury is both criminal and fraudulent.  Stan touched on this when he told Ms. Simon that if she gives false testimony he may “have to make the decision to tell the judge myself.”  Stan 7:00 – 7:10.

            Stan did a good job of making sure Ms. Simon understood that, along with his duties to her, he also owed duties to the court that would not let him mislead the court.  Stan repeatedly asked Ms. Simon if she understood what he was telling her or if she needed him to clarify anything about his obligation to not lie to the tribunal.  See, Stan 6:08–6:12 and 8:00 – 8:07.  Stan also stated his general obligation of candor to the court under Rule 3.3 a number of different ways.  See, Stan 4:55 – 5:30, 6:28 – 636, 6:50 – 7:15, and 19:45 – 19:59.

 

Jack’s Explanation of NYRPC 3.3

            Jack did not spend as much time explaining Rule 3.3.  The majority of his explanation came in a couple of statements made after Mr. Simon admitted that he planned on perjuring himself on the witness stand.  Jack starts his explanation of his duties under Rule 3.3 by telling Mr. Simon that he cannot allow Mr. Simon to testify to something that Jack knows is wrong.  Jack 17:00 – 17:12.  He seems to be discussing 3.3(a)(4) that prohibits Jack from offering testimony that he knows to be false.  When Mr. Simon asks Jack what he means Jack says, “I cannot knowingly make any false statements in a hearing. I cannot offer any false evidence.”  Id. at 17:17 – 17:25.  With this statement he touches on 3.3(a)(1) and again on 3.3(a)(4) without further explaining what he means by offering false evidence or explaining the “reasonable remedial measures” required under Rule 3.3(a)(4) if Mr. Simon does give false testimony. 

When Mr. Simon laches on to the first part of Jack’s statement and replies that he is not asking Jack to make any false statements Jack makes his best attempt at explaining Rule 3.3.  Jack clarifies by telling Mr. Simon, “I cannot allow you to get up on the witness stand and I cannot ask you questions that I know is going to lead to false testimony.”  Jack 17:28 – 17:35.  Here, Jack did a good job of explaining what Rule 3.3(a)(4) prohibits him from doing.  It would have been better if Jack had gone on to describe what comment 10 requires of an attorney who knows that his client has just offered false testimony.[4] 

            As part of the same statement that Jack cannot allow Mr. Simon to lie, Jack goes on to state, “Even if the Housing Authority believes you, I still have an obligation to tell the judge what is going on here.”  Jack 7:3 – 7:40.  As mentioned above, the rules strongly suggest the attorney take a number of steps to remedy the lie before going directly go to the judge.  Jack should have explained those steps and also what it means to “tell the judge what is going on here.”  As stated, this was inaccurate because the rule only requires Jack to make such disclosure that is reasonably required to remedy the lie not to tell him the entire lie.

            The last thing Jack tells Mr. Simon about Rule 3.3 is that he reiterates that he cannot allow Mr. Simon to offer false testimony.  Jack 17:40 – 17:48 and 21:15- 21:20.  Jack’s explanation of New York Rule 3.3 fell short of the effective explanation Stan gave and far short of what I explained in detail what Stan should have added to most of his answers.  Jack was effective at letting Mr. Simon know that falsely testifying at the tribunal was out of the question but he did a poor job of explaining why Jack had such an obligation and how he would carry out that obligation.  The failure to explain the procedures Jack is required to take to carry out his duty of candor toward the court undermined his position that Jack would not allow Mr. Simon to perjure himself.  Mr. Simon did not understand why his statements would trigger Jack into action and therefore did not understand Rule 3.3.

 

2. Effectively Conducting a Client Meeting

            The conflicting duties owed to one’s client and to the court can create a conflict between gaining enough of the client’s trust to learn the whole story and making sure the client knows the attorney cannot tolerate false testimony.  Stan and Jack took two different approaches in explaining their duty to the court.

 

Comparing How Stan and Jack Conducted the Meeting        

Stan began by explaining the exceptions to the confidentiality rules and explained his duty to not mislead the court.  Stan 4:55 – 5:30.  This made Ms. Simon wary to tell Stan the truth about Gordon’s location on the night of the incident.  Id. at 6:20 – 6:28.  Jack waited to tell Mr. Simon about his duty of candor until after Mr. Simon had told Jack that he planned to perjure himself.  Jack 17:00 – 17:12.  This tactic seemed to anger Mr. Simon and remove all the trust that he had in Jack.  Mr. Simon accused Jack of lying about confidentiality when Mr. Simon said, “your going to tell the judge what I just told you in confidence.”  Id. at 18:05 – 18:09.

            In this case the attorneys already had the information from the investigation they had done that revealed Gordon was wrong about the Jets playing and pointed to the fact that Gordon and/or Ms./Mr. Simon was lying.  Therefore, Stan took the better approach by disclosing his duty under Rule 3.3 and then informing Ms. Simon that he knew somebody was lying and he needed to know whom so he could formulate the best strategy for trial. 

In attempting to get the whole story, both attorneys assured their clients that they would have the best chance of staying in their home if Ms./Mr. Simon told them the whole story.  Stan really emphasized on multiple occasions that this was all about trying to keep them in their house and he was trying his best to do that.  Stan also made Ms. Simon aware that her testimony would be a lot less stressful, and more successful, if she would tell him the whole story.  Stan 16:45 – 17:00.  Since Mr. Simon seemed to be a little more assertive and more concerned with being involved in the strategy, Jack talked a lot about how the Housing Authority would be able to crush their false alibi if they did not come up with a better strategy.  Jack 6:38 – 6:49.  He also shifted the focus away from proving Gordon’s innocence towards just winning the case when he told Mr. Simon, “Believe it or not, even if I find out that Gordon did assault Mrs. Montez . . . If I know the truth I can still win this case.  Id. at 6:05 – 6:19.  Mr. Simon seemed surprised but pleased by this statement and started working with Jack more.

 

How I Would Conduct the Meeting the Right Way

Even though he was correct in letting Ms. Simon know about his duty to the court early, Stan went about getting to the truth in a way that did not follow the Four Component Model of Professional Conduct (The Model).  Clark D. Cunningham, Developing Professional Judgment: A More Ambitious Goal for the Professional Responsibility Course.  The Model consists of four capacities that must be utilized to implement the best professional conduct.

The first step in The Model, Moral Sensitivity[5], became important even before the meeting began.  From the time I got the information that Gordon was wrong about the football game I would have reasonably realized one of the Simons was lying and identified the potential ethical issue of digging further to find out the truth so as to not mislead the court.  As the meeting began I would have realized that Ms. Simon was very nervous about the entire ordeal and the possibility of being evicted.  I would have had to use the second step, my Moral Judgment[6], to reason that I needed to be gentle with her about the lie.  Like Stan, I would have begun by disclosing my duty of candor to the court, which would have, and did, make her wary of telling me the truth.  I would have implemented moral judgment to realize I needed to be gentle and that I couldn’t bombard her with a fake cross-examination to inform her that I had information that she was not telling me.  After explaining Rule 3.3, I would have asked her to tell me everything.  If she did not come clean then I would reveal the information I had from the investigation to show her I knew somebody was not being fully honest.

When Ms. Simon continued to advocate for the course of falsely testifying about Gordon’s whereabouts I would have had to use the third step, Moral Motivation[7], to prioritize my duty to the court over Ms. Simon’s wishes to lie.  I would have to realize that my professional identity as an attorney included the chance of disbarment and loss of trust with any future clients and judges if I allowed her to perjure herself.  Finally, I would have to combine steps one through three to complete the model’s last step, Moral Implementation[8].  I would have to continue to put myself in the Simon’s shoes and feel their very real fear of eviction to be able to reason with Ms. Simon to solve this problem and come up with the very best strategy that did not involve misleading the court.


[1] New York Rules of Professional Conduct defines “Tribunal” as “a court, an arbitrator in an arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.” NYRPC 1.0(r).

[2] Withdrawal by the attorney, even if completed before the case goes to trial, is viewed as ineffective because the client can just retain new counsel to whom she will not reveal her intent to perjure herself.  Therefore, the perjured testimony will still be offered and the new attorney will have no opportunity to dissuade her from using it.  Further, the new attorney is at risk of being blind-sided by the opposing party’s cross-examination that could reveal the lie.  Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions. 64 Mich. L. Rev. 1469 (1996). 

[3] The same problems with withdrawal before the case discussed in footnote two are exacerbated by withdrawal during a case.  A new problem is that explanation to the court and request to be relieved from representing the client could lead to a mistrial.  This request would have to be denied because it would open the door to the defendant to cause multiple mistrials the same way.  Freedman, 64 Mich. L. Rev. 1469 (1996). 

[4] See above, last paragraph of page 3 that starts with “A more complete statement would.”

[5] The capacity to interpret ambiguous clues in real life settings and identify ethical issues.  Cunningham

[6] The capacity to analyze moral issues and provide justifications for contextually appropriate decisions in the face of conflicting values.  Cunningham.

[7] The capacity to internalize moral identity and give priority to professional values to motivate moral commitment.  Id.

[8] The capacity for empathetic interaction and problem solving.  Id.