[1] This Rule governs the conduct of a
lawyer who is representing a client in the proceedings of a
tribunal. See Rule 1.0(m) 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 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)(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. 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(f). 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 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 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. 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.
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. 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
[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.