N.M. R. Prof'l. Cond. 16-303
N.M. R. Prof'l. Cond. 16-303
Committee commentary. -
[1] This rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Paragraph M of Terminology of the Rules of Professional Conduct 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, Subparagraph (3) of Paragraph A 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 16-301 NMRA of the Rules of Professional Conduct. 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 Paragraph D of Rule 16-102 NMRA of the Rules of Professional Conduct not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Paragraph D of Rule 16-102 NMRA, see the Committee Commentary to that rule. See also Committee Commentary to Paragraph B of Rule 16-804 NMRA of the Rules of Professional Conduct.
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 Subparagraph (2) of Paragraph A, 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] Subparagraph (3) of Paragraph A 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.
[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 Paragraph F of Terminology of the Rules of Professional Conduct. 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 Subparagraph (3) of Paragraph A 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 16-106 NMRA of the Rules of Professional Conduct. 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 that the adversary system is designed to implement. See Paragraph D of Rule 16-102 NMRA of the Rules of Professional Conduct. 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.
Limited Entry of Appearance; Lawyer's Duty
[15] The purpose of Paragraph E of this rule is to permit lawyers to appear for clients in a limited manner and to alert the tribunal and opposing counsel of that limited role. In New Mexico courts, attorneys and self-represented litigants are held to the same standards. New Mexico courts are lenient with both attorneys and self-represented litigants when deemed appropriate so that cases may be decided on their merits. Attorneys may give technical assistance and, when not prohibited by the rules of the tribunal, may prepare, without attribution, papers for filing by a self-represented litigant without violating the duty of candor. Even though an attorney's role may be limited to drafting a single document, the attorney is, however, bound by all of the rules that govern attorney conduct, including, but not limited to Subparagraph (1) of Paragraph A of Rule 16-303 NMRA of the Rules of Professional Conduct, which states that an attorney shall not knowingly make a false statement of law or fact to a tribunal. Note, however, that current federal practice prohibits the filing of anonymously drafted documents. See, e.g., Duran v. Carris, 238 F.3d 1268, 1271-73 (10th Cir. 2001).
Withdrawal
[16] 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 Paragraph A of Rule 16-116 NMRA of the Rules of Professional Conduct 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 Paragraph B of Rule 16-116 NMRA of the Rules of Professional Conduct 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 16-106 NMRA of the Rules of Professional Conduct.
[Adopted by Supreme Court Order No. 08-8300-029, effective November 3, 2008.]
.ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-029, effective November 3, 2008, in Subparagraph (1) of Paragraph A, added the prohibition that a lawyer shall not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; deleted former Subparagraph (2) of Paragraph A which provided that a lawyer shall not fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; relettered former Subparagraphs (3) and (4) of Paragraph A as Subparagraphs (2) and (3) respectively; in Subparagraph (3) of Paragraph A, added the provision that if the lawyer's client or a witness called by the lawyer has offered evidence and the lawyer knows the evidence to be false, the lawyer shall take reasonable remedial measures, including disclosure to the tribunal and the provision which permits a lawyer to refuse to offer evidence, other than the testimony of the defendant in a criminal matter, that the lawyer reasonably believes is false; added Paragraph B; relettered former Paragraph B as Paragraph C; in Paragraph C, added "and B"; and deleted former Paragraph C which permitted a lawyer to refuse to offer evidence the lawyer reasonably believes to be false. The 2001 amendment, effective March 15, 2001, added Paragraph E and added the Code of Professional Conduct Committee Comment preceding the ABA Comment. Compiler's notes. - The old ABA Comment was replaced by the 2008 committee commentary. Lawyers are officers of court and are always under obligation to be truthful to the court. Woodson v. Phillips Petroleum Co., 1985-NMSC-018, 102 N.M. 333, 695 P.2d 483. Public defenders are not excused from compliance with the Code of Professional Responsibility (now the Rules of Professional Conduct) even though paid with public funds. State v. Martinez, 1982-NMCA-020, 97 N.M. 540, 641 P.2d 1087. Defense counsel's failure to call judge's attention to law not fundamental error. - The defense counsel's failure to call the judge's attention to law that would favor the state if this were to be deemed a single, as opposed to a successive, prosecution, did not breach the defense counsel's professional duty of candor. This did not lead to fundamental error in the face of the prosecution's own nondisclosure of legal authority, when the state did not show the defense counsel was thinking in terms other than that of successive prosecution. State v. Alingog, 1994-NMSC-063, 117 N.M. 756, 877 P.2d 562. Disbarment for manufacturing evidence. - When an attorney, who is an officer of the court and whose duty is it to protect the integrity of the adversarial system, intentionally lies under oath and manufactures documents designed to achieve an advantage in litigation, he demonstrates a complete lack of fitness to practice law. In re Gabell, 1993-NMSC-045, 115 N.M. 737, 858 P.2d 404). Pattern of knowing misrepresentations. - Where respondent represented plaintiffs in a legal malpractice case that needed expert testimony to prove the alleged breach of the plaintiffs' former attorney's duties to the plaintiffs; respondent failed to name an expert witness to testify in support of the plaintiffs' malpractice claim and represented to the court that respondent had been unable to obtain a statement, affidavit or letter from an expert witness, when in fact respondent had never consulted a potential witness; respondent misrepresented to the court that there was a pending disciplinary complaint against the former attorney and that when representing the plaintiffs, the former attorney failed to release a lien; and respondent filed to correct respondent's statements about the former attorney when respondent learned that the statements were false, respondent's pattern of knowing misrepresentations to the court warranted suspension. In re Chavez, 2013-NMSC-008, 299 P.3d 403. Misrepresentations to a tribunal. - Where respondent, representing a client who was charged with incest, criminal sexual contact, and criminal sexual penetration of his granddaughter, prepared affidavits for granddaughter, granddaughter's father, and another witness based on their statements to respondent in which they all claimed that client was innocent of the crimes for which he was charged, evidence that respondent knew his client had committed incest and knew the affidavits contained perjured statements, and evidence that respondent filed a civil lawsuit against client's accusers, alleging that client had been falsely accused and prosecuted, was sufficient to support the conclusion that respondent made misrepresentations to a tribunal. In re Venie, 2017-NMSC-018. Lawsuit on behalf of fictitious individual. - Where an attorney, in an attempt to avoid summary judgment on claim preclusion grounds, knowingly made false statements to the district court regarding the identity of his client, representing that his client was not the same person as the plaintiff in a previously filed federal lawsuit against the Roosevelt County Detention Center (RCDC), there was sufficient evidence to support the disciplinary board's determination that the attorney violated this rule by representing to the district court that he had filed a federal lawsuit on behalf of an individual who was present during an alleged pepper spray incident at RCDC, knowing that there was no such individual, and where the attorney knowingly and falsely represented to the district court that he had filed a motion to amend the complaint filed in federal court to bring his client into the lawsuit, but where the attorney, as the author of the motion to amend, knew that the motion did not mention his client or provide any factual or legal support for the client's claims beyond what may or may not have been included in the original complaint. In re Dixon, 2019-NMSC-006. Guidelines for conduct of trial by prosecutor. State v. Diaz, 1983-NMCA-091, 100 N.M. 210, 668 P.2d 326. Comment during rebuttal argument held not improper. - Prosecutor's closing argument in rebuttal was not improper as asserting her opinion as to guilt of accused where prosecutor's argument was fair comment in rebuttal to defendant's argument. State v. White, 1984-NMCA-033, 101 N.M. 310, 681 P.2d 736. Discussion of excluded conviction and possible federal offense constituted misconduct preventing fair trial. - When a prosecutor in jury argument brought up an excluded conviction and questioned about a possible federal offense involving credibility, such acts constituted misconduct. Inasmuch as the misconduct was purposeful and could not be considered as harmless or be rectified by admonitions from the trial court, the resultant error could not have been cured at the trial, and consequently defendant was denied a fair trial. State v. Day, 1978-NMCA-018, 91 N.M. 570, 577 P.2d 878. Censure and fine for false and misleading brief. - Attorney was publicly censured and fined $1,000 for knowingly making false, misleading and inaccurate statements in a brief to the court of appeals in violation of this rule (former Rule 7-102 ). In re Chakeres, 1984-NMSC-088, 101 N.M. 684, 687 P.2d 741. Attorney knowingly making a false statement of material fact in a brief filed in the Court of Appeals for the purpose of deceiving the court warranted public censure. In re Richards, 1997-NMSC-035, 123 N.M. 579, 943 P.2d 1032. One-year suspension warranted. - Actions of an attorney involving false statements of material fact to a bankruptcy court, representation of a client in bankruptcy when owed money by the client, deposit of monies in his operating account instead of his trust account, failure to produce required records for his trust account, and misrepresentations to the Internal Revenue Service when acting in his capacity as a CPA, warranted suspension. In re Archuleta, 1996-NMSC-039, 122 N.M. 52, 920 P.2d 517. Indefinite suspension warranted. - Sixteen violations of nine rules governing professional responsibility, involving misrepresentation, neglect, improper fee-splitting, disrespect to various tribunals, and other conduct prejudicial to the administration of justice resulted in defendant's being suspended indefinitely from the practice of law. In re Quintana, 1986-NMSC-057, 104 N.M. 511, 724 P.2d 220. Indefinite suspension was warranted because of attorney's violation of Subparagraph A(1) this rule and other rules, such as Rule 16-101 NMRA, by failing to provide competent representation; Rule 16-105 NMRA, by charging an excessive fee; Rule 16-302 NMRA, by failing to expedite litigation; Rule 16-304(D) NMRA, by failing to comply with a discovery request; Rule 16-505(A) NMRA, by practicing law in a jurisdiction where doing so violates regulations; and Rule 16-804(C), (D) and (H) NMRA, by engaging in conduct involving dishonesty, deceit, and misrepresentation, by engaging in conduct prejudicial to the administration of justice, and by engaging in conduct that adversely reflects upon his fitness to practice law. In re Righter, 1999-NMSC-009, 126 N.M. 730, 975 P.2d 343. Am. Jur. 2d, A.L.R. and C.J.S. references. - 7 Am. Jur. 2d Attorneys at Law §§ 40 to 84. Attorney's verbal abuse of another attorney as basis for disciplinary action, 87 A.L.R.3d 351. Propriety and prejudicial effect of prosecutor's argument to jury indicating his belief or knowledge as to guilt of accused - modern state cases, 88 A.L.R.3d 449. Propriety and prejudicial effect of prosecutor's argument giving jury impression that defense counsel believes accused guilty, 89 A.L.R.3d 263. Disciplinary action against attorney based on communications to judge respecting merits of cause, 22 A.L.R.4th 917. Authority of trial judge to impose costs or other sanctions against attorney who fails to appear at, or proceed with, scheduled trial, 29 A.L.R.4th 160. Attorney's misrepresentation to court of his state of health or other personal matter in seeking trial delay as ground for disciplinary action, 61 A.L.R.4th 1216. Propriety and prejudicial effect of comments by counsel vouching for credibility of witnesses - federal cases, 78 A.L.R. Fed. 23. 7 C.J.S. Attorney and Client §§ 77 to 87.