Earlier this month I presented CLEs for both the Defender General’s Office and the VBA’s Bankruptcy Section. At each, we discussed Rule 3.3 and a lawyer’s duty of candor to the tribunal.
A quick search of this site shows that I often include questions on the rule in the #fiveforfriday quiz. Substantive posts, however, are exceedingly rare, limited, it seems, to this post on Rule 3.3(d) and the duty of candor in an ex parte proceeding.
While not often a topic I address, it’s a topic I hear about, whether by formal inquiry of bar counsel or by questions posed at CLEs. The inquiries & questions boil down to this: “having learned that a client or witness lied, what do I do?”
When I get the question at CLEs, I respond by asking the audience “what’s the first thing you have to do?” Two answers are common:
- “Inform the court.”
In my view, neither is the right answer.
Let’s look at Rule 3.3(a)(3). The section relevant to this post states that “a lawyer shall not knowingly:
- offer evidence that the lawyer knows to be false. If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” (emphasis added)
Stated differently, the rule does not say that
- “If the lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know its falsity, the lawyer shall withdraw/inform the tribunal.”
So, what are “reasonable remedial measures?” The comments provide guidance. Specifically, Comments  and .
Here are a few key lines from Comment :
- “In such situations, an 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.”
The use of “remonstrate” is telling. I’m not bright enough to know whether, in the comment, “remonstrate” is a transitive or intransitive verb. No matter which, it’s clear that it means more than “chatting” with the client.
Per Merriam-Webster, as an intranstive verb it means “to present and urge reasons in opposition.” With an object receiving it – for instance, a client – it means “to say or plead in protest, reproof, or opposition.” To me, the duty, then, is to protest against the false evidence having been offered, present the client with reasons to correct it, and urge the client to do so.
The Comment goes on:
- “If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the adverse 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 (the confidentiality rule).”
Harsh? Yes. The opening sentence to Comment  makes that clear:
- “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.”
Why so harsh? The next sentences provide the answer:
- “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 . . . 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.”
I don’t know how often this arises in practice. For now, if it does, remember: upon learning that a client or witness has provided false evidence, neither “withdraw” nor “inform the court” is the first step.
Remonstrate, remonstrate, remonstrate.