Me. R. Prof. Cond. 3.3
Me. R. Prof. Cond. 3.3
COMMENT
[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 not knowingly misrepresent pertinent legal authorities.
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.
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 parteproceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parteproceeding 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.
REPORTER'S NOTES:
Model Rule 3.3 (2002), addressing a lawyer's obligation to be candid with a tribunal is generally in accord with M. Bar R. 3.7 and with the Maine Attorney's Oath ( 4 M.R.S. §806 ). With regard to any statement of fact or law, the attorney has a positive obligation to advise the tribunal of the applicable facts and law and not to misrepresent the status of the law or authority being utilized in order to support a legal argument. With some modification, the Task Force recommended the adoption of Model Rule 3.3.
Model Rule 3.3 (2002) subparagraph (a)(1) is substantively consistent with Maine Bar Rules 3.7(a) and (e)(1)(i).
Members of the Task Force observed that Rule 3.3(a)(2) is a substantive departure from the corresponding rule in Maine (M. Bar R. 3.7(e)(2)(i)). Two specific concerns were articulated: (i) the difficulty of determining whether authority is "directly adverse" and "controlling," and (ii) the added burden such a disclosure of adverse authority places on a lawyer as advocate. While the language of the rule requires disclosure of only authority "known" to the lawyer, some jurisdictions have held that this Rule implies a duty to learn of adverse authority. Moreover, it has not been uniformly clear what is meant by a "controlling jurisdiction." This has been held to mean cases that originate from a higher court, as well as cases considered persuasive precedent. The Task Force thought that Model Rule 3.3(a)(2) (2002) placed too ambiguous a burden on attorneys, and thus recommended the adoption of language identical in substance to M. Bar R. 3.7(e)(2)(i) in its place. To avoid any ambiguity with respect to the authority involved, the Task Force recommended the addition of "rules" and "ordinances" to the existing text of M. Bar R. 3.7(e)(2)(i).
M. Bar R. 3.3(a)(3) incorporates current M. Bar R. 3.7(e)(1)(i) and (2)(ii). It is also consistent with the specific requirements imposed by 4 M.R.S. §806 and case law interpreting that statute. Model Rule 3.3(a)(3) provides that reasonable measures to remedy the proffer of materially false evidence include, if necessary, disclosure to a tribunal. Similarly, Model Rule 3.3(b) provides that reasonable measures to remedy criminal or fraudulent conduct relating to a proceeding include, if necessary, disclosure to a tribunal. Model Rule 3.3(c) explicitly states that, under certain clearly specified circumstances, a lawyer's obligation to disclose to a tribunal, information otherwise protected under Rule 1.6 (Confidentiality of Information) supersedes the lawyer's obligation of confidentiality under Rule 1.6. The Task Force noted, however, that adoption of Model Rules 3.3(a)(3) and 3.3(b), would resolve an arguable conflict between M. Bar R. 3.6(h)(1) (prohibiting the disclosure of a confidence or secret, without informed written consent of the client, or except as permitted by the Maine Code of Professional Responsibility or as required by law or by order of court) and the Attorney's Oath (". . .you will do no falsehood nor consent to the doing of any in court, and that if you know of an intention to commit any, you will give knowledge thereof to the justices of the court or some of them that it may be prevented"). In formulating its recommendation to adopt Model Rules 3.3(a)(3) and 3.3(b), the Task Force recognized the need to balance the interests of client confidentiality with the importance of candor to a tribunal.
Under Model Rule 3.3 subparagraph (c), a lawyer's obligation of candor applies until the case is concluded. Under M. Bar R. 3.6(h)(4) and (5), however, it was not clear whether a lawyer's obligation of candor is in force until the conclusion of the case, or whether such obligation ends at the time the lawyer's representation of the client is terminated.
Model Rule 3.3(d) does not have a direct Maine analog, but is consistent with requirements imposed upon an attorney when dealing with a tribunal. When the attorney is appropriately acting in an ex partesituation, as in an ex parterequest for attachment, the lawyer's obligation of candor to the court includes a recitation of all material facts, regardless of whether or not those facts are adverse to the attorney's client.
The Task Force recommended that Rule 3.3 be adopted in accordance with the structure of the Model Rule, but modified to reflect the above expressed issues and concerns.