5.1 Candor Toward the Tribunal
Key Takeaways
- Rule 3.3 overrides the duty of confidentiality (Rule 1.6); a lawyer must disclose material client perjury if remedial measures fail.
- A lawyer must disclose directly adverse, controlling legal authority that opposing counsel has failed to disclose.
- The duty of candor is limited in duration and expires at the conclusion of the proceeding (when final judgment is affirmed or review period expires).
- A defense attorney in a criminal case must have actual knowledge of perjury before refusing to allow the defendant to testify.
- A tribunal includes courts, administrative agencies in adjudicative capacities, and arbitrators.
Candor Toward the Tribunal (Rule 3.3)
Under the American Bar Association (ABA) Model Rules of Professional Conduct, specifically Rule 3.3, a lawyer's duty of candor to the tribunal is one of the most fundamental principles of the legal profession. This duty reflects the understanding that the integrity of the judicial system depends on the truthfulness of the advocates who practice before it. While a lawyer has a duty of zealous advocacy under Rule 1.3 and a duty of confidentiality under Rule 1.6, the duty of candor to the tribunal is paramount. Indeed, Rule 3.3(c) explicitly states that the duties of candor apply even if compliance requires the disclosure of information otherwise protected by Rule 1.6.
To understand the scope of Rule 3.3, one must first define the term "tribunal." Under Model Rule 1.0(m), a "tribunal" is not limited to traditional state and federal courts. It also encompasses administrative agencies acting in an adjudicative capacity, arbitrators, legislative bodies, or other bodies when they are conducting a formal hearing and their decisions are binding. This means that a lawyer's strict duties of candor apply equally in arbitration sessions and administrative agency hearings.
Truthfulness in Statements to the Court
Model Rule 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of fact or law to a tribunal. The rule also requires a lawyer to correct a material false statement of fact or law that the lawyer previously made to the tribunal.
The key term in this rule is "knowingly." Under Rule 1.0(f), "knowingly" denotes actual knowledge of the fact in question, though a person's knowledge may be inferred from circumstances. An advocate is not required to have personal knowledge of all facts asserted in pleadings, as pleadings are typically based on information provided by the client. However, if a lawyer makes an assertion of fact in open court or in a signed document (such as an affidavit or a motion where the lawyer is affirming the facts based on personal knowledge), the lawyer must be truthful. If the lawyer later discovers that a statement they made was false and material, they must correct it immediately.
Duty to Disclose Controlling Adverse Legal Authority
Advocacy requires representing a client's position in the best possible light, but it does not permit misleading the court about the state of the law. Under Rule 3.3(a)(2), a lawyer must 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.
This rule contains several critical limitations that are frequently tested on the MPRE:
- Controlling Jurisdiction: The authority must be from a court that binds the tribunal. If a lawyer is arguing a case in a California state court, a decision by the Oregon Supreme Court is persuasive but not controlling, so the lawyer has no ethical duty to disclose it, even if it is directly adverse. However, a decision by the California Supreme Court or the California Court of Appeal for that district would be controlling and must be disclosed.
- Directly Adverse: The case or statute must be on point and contrary to the legal position the lawyer is advocating.
- Not Disclosed by Opposing Counsel: The duty only arises if the opposing counsel has failed to bring the adverse authority to the court's attention. If the opposing counsel has already cited the adverse case, the lawyer's duty is satisfied, and they do not need to bring it up again.
Once the lawyer discloses the adverse controlling authority, they are not required to surrender. The lawyer may, and should, argue why the authority is distinguishable, why it was wrongly decided, or why it should be overruled or modified. The purpose of the rule is to ensure the judge is not misled about the current state of the law, allowing the court to make an informed decision.
Client Perjury and Offering False Evidence
Perhaps the most complex aspect of Rule 3.3 involves a lawyer's duties when a client or a witness plans to lie or has already lied on the stand. Under Rule 3.3(a)(3), a lawyer shall not knowingly offer evidence that the lawyer knows to be false.
The rule distinguishes between actual knowledge and a reasonable belief. If a lawyer knows evidence is false, they must refuse to offer it. If a lawyer does not know but reasonably believes the evidence is false, the lawyer may refuse to offer it, with one major exception: a defense lawyer in a criminal case cannot refuse to call a client to testify if they only "reasonably believe" the client will lie. Because a criminal defendant has a constitutional right to testify in their own defense, the defense lawyer must have actual knowledge of the perjury before refusing to offer the testimony.
If a lawyer discovers that their client or a witness has offered material false evidence, the lawyer must take "reasonable remedial measures." This duty overrides the duty of confidentiality under Rule 1.6. The process involves a three-step hierarchy:
- Remonstration: The lawyer must first speak privately with the client, explain the lawyer's ethical duty of candor, and try to persuade the client to correct or withdraw the false evidence.
- Withdrawal: If the client refuses to cooperate, the lawyer must seek the court's permission to withdraw from the representation if withdrawal will remedy the situation.
- Disclosure: If withdrawal is not permitted (which is common on the eve of or during trial) or if it will not remedy the harm, the lawyer must disclose the falsity to the tribunal. The disclosure must be sufficient to correct the record, which may involve telling the judge that the client has lied.
In criminal cases, the issue of client perjury is particularly acute due to constitutional protections. Under the Model Rules, if a criminal defendant insists on testifying falsely, and the lawyer cannot withdraw, the lawyer must still perform the three-step remedial measures, including disclosure. Some jurisdictions allow a "narrative approach" where the defendant testifies in a narrative format without questioning from the lawyer, and the lawyer does not reference the false testimony in closing arguments. However, the ABA Model Rules do not permit the narrative approach unless the court specifically orders it.
Duration of the Obligation
The duty of candor does not last forever. Under Rule 3.3(c), the duties of candor continue until the "conclusion of the proceeding."
A proceeding is considered concluded when a final judgment has been entered and affirmed on appeal, or when the time for filing an appeal or seeking further review has expired. Once the proceeding is concluded, the lawyer's duty of candor under Rule 3.3 ends. If the client later confesses to the lawyer that they lied during the trial, the lawyer is no longer obligated—and indeed is forbidden by Rule 1.6—to disclose this information to the court, as the proceeding is over.
An attorney represents a client in a civil action. During research, the attorney discovers a case from the state supreme court that is directly adverse to the client's position. The opposing counsel did not cite this case in their brief. What must the attorney do?
An attorney represents a criminal defendant. The night before trial, the defendant tells the attorney that he intends to lie on the stand to create an alibi. The attorney remonstrates with the defendant, but the defendant insists on testifying falsely. The attorney is unable to withdraw because the court denies the motion to withdraw on the eve of trial. Under the ABA Model Rules, what should the attorney do?
An attorney represented a client in a civil breach of contract case. The jury returned a verdict in the client's favor, and the court entered a final judgment, which was subsequently affirmed on appeal. Six months after the appeal was decided and all review periods had expired, the client boasted to the attorney that he had successfully fabricated a key document that was introduced as evidence during the trial. The attorney had no idea the document was false during the litigation. What is the attorney's ethical obligation?