RULE 3.3 CANDOR TOWARD THE TRIBUNAL

Obsolete Date: 8/1/2006

(a) A lawyer shall not:

(1) Make a statement to a tribunal of fact or law that the lawyer knows to be false; or

(2) Offer evidence that the lawyer knows to be false.

(b) A lawyer may refuse to offer evidence that the lawyer believes is false.

(c) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall disclose this fact to the tribunal unless the evidence was contained in the testimony of the lawyer's client. This duty does not exist if the lawyer comes to know of the falsity of the evidence after:

(1) The lawyer withdraws in accordance with Rule 1.16.

(2) The issue to which the duty relates is determined by the highest tribunal that may consider the issue; or

(3) The time has expired for the determination in paragraph (c)(2).

(d) If a lawyer has offered material evidence and comes to know of its falsity and the evidence was contained in the testimony of the lawyer's client, the lawyer shall make reasonable efforts to convince the client to consent to disclosure. If the client refuses to consent to disclosure, the lawyer shall seek to withdraw from the representation without disclosure. If withdrawal is not permitted, the lawyer may continue the representation and such continuation alone is not a violation of these rules. This duty does not exist if the lawyer comes to know of the falsity of the evidence after:

(1) The lawyer withdraws in accordance with Rule 1.16;

(2) The issue to which the duty relates is determined by the highest tribunal that may consider the issue; or

(3) The time has expired for the determination in paragraph (d)(2).

(e) A lawyer shall 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 duty continues until either of the following occurs:

(1) The lawyer withdraws in accordance with Rule 1.16; or

(2) The issue to which the duty relates is determined by the tribunal in which the duty arises.

(f) In an ex parte proceeding, a lawyer shall inform the tribunal of all facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The advocate's task is to present the client's case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate's duty of candor to the tribunal. See also Rules 1.2(d) and 1.6.

Rule 3.3 is intended to apply to counsel in criminal cases as well as in civil cases. However, the definition of the lawyer's ethical duty in some situations may be qualified by constitutional provisions for due process and the right to counsel in criminal cases. The objective of the advocate under these Rules is subordinate to such constitutional requirements.

Representations of Law and Fact by a Lawyer

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 to the tribunal, 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. Too, legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal.

False Evidence

If a lawyer knows evidence to be false, the lawyer must refuse to offer it regardless of a client's wishes and regardless of whether it is to be offered by a client or some other person. If a lawyer believes such evidence to be false, the lawyer may refuse to offer the evidence without violation of the lawyer's ethical duty to represent the client diligently.

When false evidence has been offered by a person other than a client and the lawyer thereafter comes to know of its falsity, the lawyer must disclose its false character to the tribunal regardless of the client's wishes.

When false evidence has been offered by a client and the lawyer thereafter comes to know of its falsity, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must seek to withdraw from the representation without disclosure. If withdrawal from the representation without disclosure. If withdrawal is not permitted, the lawyer may continue the representation, and such continuation alone is not a violation of these Rules.

The lawyer's obligation under this Rule to disclose to the tribunal that false evidence has been offered by a person other than a client or, where false evidence has been offered by a client, to remonstrate or--where remonstration is unsuccessful--to attempt withdrawal arises only during the representation. Thus, if a lawyer, after having properly withdrawn from representation of a client, or after the issue to which the lawyer's obligation under this Rule relates is determined by the highest tribunal that may consider the issue or the time has expired for that determination, comes to know that false evidence was offered, that lawyer never becomes obligated under this Rule to disclose or to attempt remonstration. However, that lawyer may have obligations under other laws, such as general statutes requiring the reporting of crime, to take some action. In this regard, the lawyer must also consider the effect of other factors, such as the attorney-client privilege.

Failure to Disclose Adverse Authority

A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. As stated in Rule 3.3(e), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which 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.

A lawyer does not have the obligation indefinitely to continue calling to the tribunal's attention new, or newly discovered, adverse authority. The duty to do so continues only so long as the parallel obligation to the client to raise and use favorable authority exists. Thus, upon a lawyer's withdrawal from the representation, the obligation ceases. Similarly, when the matter has moved--by appeal or otherwise--out of a tribunal, the duty to that tribunal is ended; if, however, the matter is then or later pending before another tribunal, and the lawyer has not in the meanwhile withdrawn, the obligation of candor requires that the lawyer call to this different tribunal's attention the existence of controlling adverse authority should it then be pertinent and should the opposition fail to do so.

Ex Parte Proceedings

Subject to Rule 3.3(e), an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching decision. The conflicting position is expected to be presented by the opposing party. However, in an 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 tribunal 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.

Reference: Minutes of the Professional Conduct Subcommittee of the Attorney Standards Committee on 03/16/84, 05/23/84, 06/27/84, 08/17/84, 09/13/84, 10/19/84, 12/14/84, 02/08/85, 03/11/85 and 04/26/85