F12 WA2
PART 1
An attorney’s concurrent duties of
candor towards a tribunal and maintaining confidentiality towards a client can
conflict with each other and present a difficult ethical dilemma. Rule 1.6
requires that an attorney “maintain in confidence all information gained in the professional
relationship with a client.” NYRPC 1.6(a). However, NYRPC 3.3 presents an exception to the rule based on an attorney’s duty to aid tribunals
in making informed decisions. Attorneys Jack and Stan had the task of explain
Rule 3.3 to their respective clients (“Mr. Simon” and “Ms. Simon”), and their
explanations differed in both accuracy and comprehensiveness.
In
order to evaluate Jack and Stan’s respective explanations of Rule 3.3, it is
necessary to first understand what the rule requires, permits, and prohibits.
Rule 3.3 requires that an attorney
disclose information to a tribunal in two scenarios. First, when disclosure of
a material fact is necessary to avoid assisting a criminal or fraudulent act by
the client. NYRPC 3.3(a)(3). Second, when there is controlling legal authority
known to be directly adverse to the position of the client not disclosed by
opposing counsel. NYRPC 3.3(a)(4). Additionally, in ex parte proceedings, other than grand
jury proceedings, a lawyer must inform the tribunal of all “material facts
known to the lawyer,” adverse or not, if the lawyer “reasonably believes” such
facts are “necessary to enable the tribunal to make an informed decision.”
NYRPC 3.3(d). In other words, “the lawyer must not allow the tribunal to be
misled by false statements that the lawyer knows to be false.” NYRPC 3.3
Comment [2]. Additionally,
Rule 3.3 prohibits a lawyer from two
kinds of actions: (1) making a false statement of material fact or law to a
tribunal; and (2) offering evidence that the lawyer knows to be false; if a lawyer has offered material evidence and comes to know of its
falsity, the lawyer must “take reasonable remedial measures.” NYRPC 3.3(a)(1) and (4). Remedial measures include requiring the lawyer to make a disclosure to
the tribunal “as is reasonably necessary to remedy the situation.” NYRPC 3.3
Comment [10]. Notably, the prohibitions described above only apply “if the
lawyer knows that the evidence is false.” NYRPC 3.3 Comment [8]. Thus, even a reasonable
belief that evidence is false does not preclude the attorney from presenting
the evidence to the trier of fact. Id. However, a lawyer “cannot ignore an
obvious falsehood,” including one inferred from the circumstances. Id. NYRPC
3.3. Finally, Rule 3.3(c) permits a
lawyer to “refuse to offer evidence that the lawyer reasonably believes is
false.” NYRPC 3.3 Comment [5].
When Jack realized he was dealing
with a situation that implicated Rule 3.3, he explained to Mr. Simon that there
are “certain rules that [lawyers] have to abide by, and one of those rules is
that [a lawyer] cannot knowingly make any false statements in a hearing” or
“offer any false evidence.” Jack:17:15.
Mr. Simon replied that he was “not asking [Jack] to offer any false evidence,” indicating
that he did not understand that testimony is evidence. Jack:17:25. Jack replied: “I cannot allow you to get on the witness
stand and I cannot ask you questions that that I know is going to lead to false
testimony. Even if the Housing Authority believes you, I still have an
obligation to tell the judge what is going on here.” Jack:17:27-43. Although Jack may have been representing his own
convictions rather than the parameters of the rule, his statement suggests that
he would not allow Mr. Simon to testify if he thought Mr. Simon was going to
testify falsely. Yet, the rule “allows
that the lawyer refuse to offer evidence that the lawyer knows to be false.”
NYRPC 3.3 Comment [5] (emphasis added). Jack, therefore, misrepresented the
rule as prohibitive, compelling him to refuse to let Mr. Simon testify, when
the nature of the rule is permissive. However, Jack was correct in stating that he
could not ask questions that he knew would lead to false testimony. NYRPC 3.3 Comment [6], [9]. That said, Jack was not entirely accurate
when he said he had an obligation to make a disclosure to the judge in the
event that Mr. Simon testified falsely. Disclosure to the tribunal would only
be a required remedial measure if “reasonably necessary to remedy the situation.”
NYRPC 3.3 Comment [10]. While this may
involve telling the judge what the client told him in confidence, disclosing
confidential information to the judge is not always a reasonably necessary
remedy; a simple withdrawal of the statement may be more appropriate.
In contrast to Jack, Stan tackled
his explanation of Rule 3.3 at the beginning of the meeting, telling Ms. Simon:
“If I become aware that, you have . . . false evidence, then I . . . would do
my best to try and get you . . . not to divulge that or to share that
evidence.” Stan:4:56-5:23. This is an
accurate explanation of his initial obligation under Rule 3.3; the comments to the rule explain that when confronted with a situation
in which the lawyer knows the client intends to testify falsely or wants to
introduce false evidence, “the lawyer should seek to persuade the client that
the evidence should not be offered.” NYRPC 3.3 Comment [6]. Further, the
Supreme Court in Nix v. Whiteside said
that it is “universally agreed that at a minimum the attorney's first duty when
confronted with a proposal for perjurious testimony is to attempt to dissuade
the client from the unlawful course of conduct.” Nix v. Whiteside, 475 U.S. 157 at
169 (1986). Stan
continued by telling Ms. Simon if he was to “find out that [she] used false
evidence, [he was] going to have to find a way to fix that” because he cannot
knowingly “let . . . a tribunal or a judge think that false evidence . . . is valid.” Stan:6:30-46. Though not inaccurate, as in ex parte proceedings such as this a lawyer is obligated to “inform
the tribunal of all material facts” known to him that he “reasonably believes
are necessary to enable the tribunal to make an informed decision,” the
statement is problematically vague. NYRPC 3.3(d). Ms. Simon is left unsure of
what her attorney would do to “fix” that situation. Stan goes on to explain:
“The problem for you is that I’m going to convince you to either tell the judge
‘I’m sorry, I gave false evidence’ or ultimately I may have to make the
decision to tell the judge myself.” Stan:6:52-7:03.
This statement is also accurate, though somewhat limited. She would not
necessarily have to explicitly confess that she gave false evidence; she could
simply withdraw the statement. NYRPC 3.3 Comment [10]. However, Stan correctly
states that if she refuses to correct or withdraw the statement, he may have to make a disclosure to the
tribunal. Id.
The success of these explanations
lies in client’s level of comprehension. When Jack first attempts to explain
Rule 3.3, Mr. Simon, confused, says, “I’m not asking you to offer any false
evidence.” Jack:17:25. Once Mr. Simon
realizes that testimony is evidence, he reacts defensively; despite Jack’s
attempt to steer the conversation back on course, Mr. Simon is not persuaded to
abandon his original plan, arguing: “But if we just go in and say [Gordon] was
with me, it all goes away.” Jack:22:52.
When Jack refuses to allow that, Mr. Simon indignantly replies, “But you’re my
attorney,” revealing that he did not understand Jack’s obligation to the
tribunal as well as his clients. Jack:22:56.
After this exchange, Mr. Simon started to look for a loophole in the phrase
“knowingly” by saying, “[w]ell, maybe he was with me. I don’t know.” Jack:23:08. Of course, at that point it
was too late, as Jack already knew that was false. Stan’s client also at times
did not comprehend the implications of Rule 3.3, saying, “It sounds like you
have a problem, but what’s my problem?” Stan:6:28.
Later, when the implications to her situation came to light, Ms. Simon
expressed confusion, saying, “I don’t understand why I need to go up and tell
the court that I was mistaken when it’s only been a conversation between us,
which is confidential anyway.” Stan:20:28.
However, towards the end of the conversation, after Stan had again explained
the rule, Ms. Simon was agreeable and seemingly accepted Stan’s obligations to
the Court, unlike Jack’s client, who was openly frustrated.
PART 2
Jack and Stan
both successfully spotted an ethical issue, exercised moral judgment guided by
professional values, and carried out that judgment in their respective client
meetings. However, both Jack and Stan’s implementation was flawed, albeit in
different ways.
Jack put more
emphasis and effort into gaining his client’s trust than Stan at the expense of
ensuring the client’s comprehension of the rules of confidentiality, exceptions
included. For example, when Mr. Simon asked Jack, “So it’s OK to tell you
everything?” Jack assuredly said, “Absolutely.” Jack:0:58. Later, when Jack pointed out the discrepancy in Gordon’s
alibi, Mr. Simon looked to him for reassurance, asking, “And I can trust you on
this, right?” to which Jack again responded, “Absolutely.” Jack:15:39-41. Prior, Jack briefly touched on some of the
exceptions to confidentiality, but he did not include NYRPC 3.3, which was most
applicable to Mr. Simon’s case. He stressed that he was “not going to tell
anybody about what [Mr. Simon tells him]” and how crucial it was that Mr. Simon
reveals “the entire truth,” so that even if Gordon did commit the robbery, they
“can still win this case.” Jack:5:22-6:19.
Jack’s downplay/omission of exceptions to confidentiality initially aided
him in learning the truth about where Gordon was on the night of the mugging.
Mr. Simon began to open up to him about the “other young man” Gordon was
friends with who was similarly “marked by the Housing Authority.” Jack:10:46-11:59. Only after Mr. Simon
confessed that the alibi was false did Jack tell him that they could not
present false testimony to the tribunal. Granted, Jack demonstrated moral
sensitivity here by realizing that his client’s potential offering of false
testimony would mislead the tribunal. He also exercised moral judgment by
giving priority to professional values in deciding he would not allow his
client to testify falsely. Further, he demonstrated moral motivation by
sticking to his decision in the face of resistance from the client. However,
his moral implementation was deficient. Mr. Simon immediately recognized the
inconsistency in that Jack repeatedly assured him that their conversation was
confidential, but that he would also “tell the judge what [he] just told [him]
in confidence.” Jack: 18:07. By the
end of their conversation, it appeared that Mr. Simon was not convinced that Jack
was a trustworthy advocate; rather, he still wanted to testify that Gordon was
with him, so that “it all goes away.” By the end of the meeting, Mr. Simon even
started trying to backtrack by saying that “maybe [Gordon] was with [him].” Jack:22:56-23:08. Here, Jack had
ascertained “what is happening” and “what ought to be done,” considerations of
moral sensitivity and judgment, but failed to consider “what to say” or “how to
say it,” considerations crucial to effective moral implementation. See Cunningham
& Alexander, “Developing Professional Judgment.” He had not considered the
potential effect that the too-little-too-late timing of his explanation of
NYRPC 3.3 would have on his client’s trust in him as an advocate. By assuring
absolute confidentiality, he initially gained trust at the expense of
misleading his client, ultimately compromising his ability to implement a plan
that avoided presentation of false testimony. As a result, his client was
unwilling to explore options that aligned with Jack’s professional ethics.
Compare
this to Stan, who decided to explain the rule against presenting false evidence
before attempting to elicit the truth
about Gordon’s alibi. He posed to her that, despite this rule, it was in her
best interest to tell him everything to prevent the Housing Authority from
revealing a falsity in questioning her. Stan evidently noticed the discrepancy
in his client’s alibi and wanted to get to the bottom of it. He was also likely
aware of the conflict this revelation might have with NYRPC 3.3, but he decided
that rather than mislead his client he would present this exception to her in
the beginning and attempt to gain her trust in spite of it. In this way, he
showed moral sensitivity to the issue, and after wrestling with the professional
obligations of being an advocate for his client and an officer of the court,
and he made a moral judgment in deciding to reconcile both by attempting to
uncover the truth and convince his client to pursue a strategy incorporating
the truth rather than the lie. He then demonstrated moral motivation by using
this strategy for the duration of the meeting. His implementation, however, was
also questionable, but in a different way than Jack’s. Stan proceeded, over his
client’s admitted nerves, to interrogate her as if he was the Housing
Authority, even though Ms. Simon expressed that she was “confused” and that the
process was “intimidating” and “really uncomfortable.” Stan:11:25-34, 16:33, 19:11. By making his client defensive and
nervous, Stan was not empathetic to her and thus not effectively interacting
with her. However, he did uncover the truth about Gordon’s alibi. {Prof C: Stan did not uncover the entire truth about the alibi, however.} At that
point, despite his previous explanation of Rule 3.3, Ms. Simon still did not
understand why she would need to tell the court that she was mistaken about
Gordon’s whereabouts “when it’s only been a conversation between [she and her
attorney], which is confidential anyway.” Stan:20:30-33.
However, Stan maneuvered these waters better than Jack, likely aided by having
discussed the rule earlier, and went on to explain to Ms. Simon how it would be
in her best interest to admit a mistake to increase her credibility in the
tribunal’s eyes. Stan:21:00-05. In
this way, Stan implemented his decision to both act in his client’s best
interests and as an officer of the court. Whether Ms. Simon whole-heartedly
adopted his strategy is not entirely clear, but they ended the meeting amicably
and she seemed as though she trusted Stan and was honestly considering his
plan, unlike Jack’s client, who seemed defiant and resentful by the end of the
meeting.
I
would recognize the need to interpret an ethical dilemma once my investigator
uncovered the discrepancy in Gordon’s alibi. At that point, an assessment of my
professional obligations under NYRPC 3.3 and my duty of confidentiality and
advocacy on my client’s behalf would lead me to decide that I would do
everything I could to first find out the truth (pursuant to my obligations both
as her advocate and an officer of the court). While it may be tempting to avoid
uncovering the falsehood and claim ignorance, I believe that uncovering the
truth, thereby aiding the court in the same, is properly prioritized over my
own interest in sparing myself from a complicated ethical dilemma.
I believe that
Stan more successfully implemented his moral judgment by being upfront about
his duty to not knowingly present false evidence (including testimony) to the
tribunal, which includes an explanation of what Rule 3.3 requires, permits and
prohibits. See Part 1. In the course of this explanation, I would tell
Ms. Simon that if I discovered her testimony was false, I would have to take
reasonable remedial measures; admittedly, those remedial measures may include disclosing parts of our
confidential conversation, but I would stress that this would not occur not
without first exploring other, less damaging options, including, with her cooperation, withdrawing or
correcting the false statement. Though a thorough explanation of Rule 3.3 may
inhibit conversation, I would rather work through that than risk the more
difficult position of regaining trust that has been lost or damaged. However,
upon uncovering the false alibi, to competently implement my ethical decision,
I would persuade her not to offer the false evidence. See NYRPC, Comment
[6]. Here, I would be frank with my client that her alibi has weaknesses that
could be detrimental to her case. To convince her that she should abandon her
original plan due to its inherent disadvantages rather than my professional
obligations, I would point out the risk that prosecution will reveal the
falsity in cross-examination or that the tribunal in observing her demeanor
will not find her to be credible. In the alternative, I would offer that we
could raise doubt about whether Gordon really was there that night by casting
doubt on the witness’s credibility and emphasizing Ms. Simon’s integrity. In my
opinion, this approach would result in an effective, professionally conducted
meeting.