RULE 3.3 CANDOR TOWARD THE TRIBUNAL
(a) A lawyer shall not knowingly:
(1)
make a false statement of material fact or law to a
tribunal;
(2)
fail to disclose a material fact to a tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act by the client;
(3)
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
(4)
offer evidence that the lawyer knows to be false. If a
lawyer has offered material evidence and comes to know of its falsity, the
lawyer shall take reasonable remedial measures.
(b) The duties stated in
paragraph (a) continue to the conclusion of the proceeding, and apply even if
compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer
evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding,
other than grand jury proceedings, a lawyer shall inform the tribunal
of all material facts known to the lawyer that the lawyer reasonably believes
are necessary to enable the tribunal to make an informed decision,
whether or not the facts are adverse.
The maximum penalty for a
violation of this Rule is disbarment.
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(r) 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)(4)
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 adversary 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 law or fact 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 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 the Comment to Rule 8.4(b).
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)(3), 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 (c) allows 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 may 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 from the witness the
testimony that the lawyer knows is false.
[7] The duties stated in
paragraphs (a), (b) and (c) apply to all lawyers, including defense counsel in
criminal cases. In some jurisdictions, however, courts have required counsel to
present the accused as a witness or to give a narrative statement if the
accused so desires, even if counsel knows that the testimony or statement will
be false. The obligation of the advocate under the Rules of Professional
Conduct is subordinate to such requirements. See also 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(i). 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)(4)
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 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
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 cross-examination 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.
In such situations, 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
must take further remedial action. If withdrawal from the representation is not
permitted or will not undo the effect of the false evidence, the advocate must
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.
Duration of
Obligation
[13] A practical time limit on
the obligation to rectify false evidence or false statements of law and fact
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 a final judgment in the
proceeding has been affirmed on appeal or the time for review has passed.
Ex Parte
Proceedings
[14] 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.
Withdrawal
[15] 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 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.