General Comments on the Graded Writing Assignment

1. A good paper would show in the discussion of Topic One that the student understands both the text of GRPC 3.3 and the comments, in particular the most subtle and complex aspect of 3.3: while a lawyer "must not allow the tribunal to be misled by .. evidence the lawyer knows to be false," Comment 2, the lawyer has discretion in determining what action to take as long as the lawyer does act, and the measures taken "remediate" the problem of false evidence and do so "reasonably," 3.3(a)(4). For further discussion, see Comments 4-6.
   
   
2. A good paper would, at a minimum, discuss under Topic Two the difference in timing as to when Stan and Jack warn Simon about the 3.3 exception to confidentiality, and in the "what you would do" section whether (and why) the student would or would not explain that exception at the outset of the meeting given the risk that such an explanation might deter Simon from disclosing that the alibi is false.
   
   
3. In the Stan video between 3:00 and 5:00 Stan appears to be trying to explain GRPC 1.6(b)(1)(i), which states that the lawyer "may reveal" confidential information to prevent harm or substantial financial loss that would result from criminal conduct. (During the semester this role play was videotaped, students were instructed to use the ABA Model Rules, so in fact Stan was trying to explain ABA Model Rule 1.6(b)(2).) However, a number of students quite reasonably thought that Stan was instead trying to explain GRPC 3.3(a)(2) which provides that a lawyer "shall not" knowingly fail to disclose a material fact to a tribunal if such disclosure would be necessary to avoid assisting a criminal or fraudulent act by the client. If Stan had been explaining 3.3(a)(2) then -- as these students pointed out -- his explanation would have been inaccurate when he said "I have the option of divulging that information" since the duty under 3.3(a)(2) is mandatory, not discretionary.
   
   However, GRPC 3.3(a)(2) is best understood as applying only to situations where the criminal or fraudulent act to be prevented is a crime or fraud relating to proceedings before a tribunal, as explained in Comment 12: "Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process." GRPC 3.3(a)(2) is based on the original 1983 version of the ABA Model Rules. Probably because of the potential for confusion, when the ABA re-wrote 3.3 in the 2002 version of the Model Rules, it deleted 3.3(a)(2) and replaced it with a new 3.3 (b) which makes it clear that the duty only applies to conduct related to an adjudicative proceeding: " 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." Because GRPC 3.3(a)(2) is potentially confusing, I did not take into account in my grading whether or not a student discussed 3.3(a)(2) in connection with Stan's "I may have the obligation" explanation at Stan 3:00 - 6:00
   
   
4. Some students wrote that if a client confides in her lawyer the intent to offer false testimony the lawyer, at that point, has a duty to inform the court even if doing so discloses information protected by Rule 1.6 However, under 3.3 the kind of "reasonable remedial measure" required is going to be different depending on whether false testimony has already been given (in a deposition, affidavit or actual hearing before a tribunal). In the situation presented in the second Simon exercise (and Nix v Whiteside), because false testimony has not yet been given, if the lawyer succeeds in preventing the giving of false testimony, then no disclosure to the tribunal is required because there is nothing to be "remedied."
   
   
5. Other students seemed to agree with Jack that, if a client does offer material testimony on the witness stand that the lawyer knows to be false based on confidential information, the lawyer then immediately has a duty to "tell the judge what is going on here." Stan's explanation is more accurate -- that as he tries "to find a way to fix that" he would first "address that with you" by trying to convince the client to "tell the judge I'm sorry I gave false evidence" and only after that he "may have to make the decision to tell the judge myself." Some students who paid close attention to Stan's words wondered whether he was accurate in saying "I may have to make the decision" rather than "I must tell the judge myself." Comment [10] to Rule 3.3 does indicate that "withdrawal from the representation" is permitted instead of disclosure to the tribunal if withdrawal is permitted and will undo the effects of the false evidence (as for example when a mistrial results). Therefore, Stan is probably accurate when he uses "may" to describe his decisionmaking process at this point.
   
   
6. If a client does offer material testimony on the witness stand that the lawyer knows to be false based on confidential information, and the client does not herself then withdraw or correct the false testimony (after the lawyer confidentially "remonstrates" with the client), Comment [10] to Rule 3.3 seems to indicate that at that point the lawyer has only two choices: "withdrawal from the representation" or "disclosure to the tribunal" if withdrawal "is not permitted or will not undo the effects of the false evidence." However, because the language of the comments do not "add obligations to or expand the Rules" (see GRPC Scope [13] ), and the actual language of 3.3 only specifically mandates "reasonable remedial measures," Comment [10] can not completely limit the meaning of "reasonable remedial measures" in 3.3(a)(3). A measure is "remedial" if it "remedies" or "undoes" the effect of the false testimony. Therefore, the lawyer for a civil plaintiff could consider whether she can "remedy" the effects of the client's false testimony by dismissing the case (assuming no counterclaims or right to recover costs or fees by the defendant), as Gandhi did. The harm potentially caused by the false testimony would be a judgment that would have been won but for the false evidence. The lawyer might reason that dismissal would "reasonably remediate" that harm without disclosing confidential information and exposing the client to a possible perjury prosecution. By analogy, could Simon's lawyer remedy her false testimony by giving Simon the choice of either agreeing to move out or having the lawyer disclose to the tribunal that the alibi testimony was false? Simon might well then choose to accept the eviction rather than have the administrative law judge informed of the false testimony. Since 1983 the ABA (and since 2000 Georgia) has continued to use the broad phrase "reasonable remedial measures" in 3.3 to give lawyers latitude to work out solutions that honor the purposes of both 3.3 and 1.6. The lawyer must take reasonable steps to remedy the effects of false testimony but at the same time should try to find a way to tailor that remedy to avoid violating the duty of confidentiality, or at least to keep disclosure to the absolute minimum necessary for a reasonable remedy.
   
   
7. Some students commented that Jack was probably too hasty in assuming that the client was lying, particularly when the lawyer apparently overlooked that the "record for sacking" did in fact take place on Sunday night as reported by the client and Gordon, albeit in a Giants (not a Jets) victory. Students also pointed out that Jack may have overstated the likelihood of losing the case and inappropriately pushed for probation. It would be wrong for a lawyer to exaggerate the risk of losing in order to persuade the client to agree to a settlement, even if the lawyer sincerely believes that settlement is the best outcome for the client.
   
   
8. It is worth considering other potential benefits to Simon if she decides to tell truth to the lawyer beyond avoiding the risk of being caught lying on the witness stand. One possible outcome is collaboration between Simon and the lawyer in finding out more about Gordon's real activities on Sunday night. Perhaps Gordon was doing something other than mugging Montez that he doesn't want his parent to know about, e.g. drinking at a bar or buying liquor with a false ID. Either of those activities might have generated a time stamped receipt that could prove his whereabouts, or perhaps corroboration could be obtained from witnesses or security camera footage. And what if Gordon was involved in the mugging? The mugging might be caused by a serious drug problem he is hiding from his parent (e.g. he was involved in the robbery to steal money to buy drugs). Is it really best for Simon to win the eviction hearing (by telling the false alibi without the lawyer knowing it to be false) and remain ignorant of Gordon's drug problem and be deceived by Gordon about what happened? Arguably not. An untreated drug problem is likely to lead to further conduct by Gordon that will threaten their tenancy. And more fundamentally, would not Simon want to know about the drug problem so she (or he) can try to cure it? Simon might decide that Gordon needs to spend time in a residential treatment program, which could become a condition for Simon's continued tenancy.
   
   Penetrating the false alibi might result in a shared effort by Simon and the lawyer to learn the real truth (but that is perhaps less likely to occur if the client feels tricked by the lawyer and then bullied by the threat to withdraw or tell the tribunal).
   
   
9. Too many students referred to "attorney-client privilege" in their papers instead of "the duty of confidentiality." It is very important to realize that there is a big difference between the two and not be sloppy in referring to the duties and exceptions created by RPC 1.6 and 3.3 as matters of attorney-client privilege. ATTORNEY-CLIENT PRIVILEGE IS CREATED BY THE SUBSTANTIVE LAW OF EVIDENCE. THE DUTY OF CONFIDENTIALITY IS CREATED BY THE RULES OF PROFESIONAL CONDUCT.