(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, unless correction would require disclosure of information that is prohibited by Rule 1.6;
(2) Counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law;
(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction not disclosed by opposing counsel and known to the lawyer to be dispositive of a question at issue and directly adverse to the position of the client; or
(4) Offer evidence that the lawyer knows to be false, except as provided in paragraph (b). A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) When the witness who intends to give evidence
that the lawyer knows to be false is the lawyer’s client and is
the accused in a criminal case, the lawyer shall first make a good-faith
effort to dissuade the client from presenting the false evidence; if
the lawyer is unable to dissuade the client, the lawyer shall seek leave
of the tribunal to withdraw. If the lawyer is unable to dissuade the
client or to withdraw without seriously harming the client, the lawyer
may put the client on the stand to testify in a narrative fashion, but
the lawyer shall not examine the client in such manner as to elicit
testimony which the lawyer knows to be false, and shall not argue the
probative value of the client’s testimony in closing argument.
(c) The duties stated in paragraph (a) continue to
the conclusion of the proceeding.
(d) A lawyer who receives information clearly establishing
that a fraud has been perpetrated upon the tribunal shall promptly take
reasonable remedial measures, including disclosure to the tribunal to
the extent disclosure is permitted by Rule 1.6(d).
Comment
[1] This rule defines the duty of candor to the tribunal. See Rule 1.0(l) for the definition of “tribunal.” The rule 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. In dealing with a tribunal the lawyer is also required to comply with the general requirements of Rule 1.2(e) and (f). However, an advocate does not vouch for the evidence submitted in a cause; the tribunal is responsible for assessing its probative value.
Representations by a Lawyer
[2] An assertion purported to be made by the lawyer,
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 may be circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. If the lawyer comes
to know that a statement of material fact or law that the lawyer previously
made to the tribunal is false, the lawyer has a duty to correct the
statement, unless correction would require a disclosure of information
that is prohibited by Rule 1.6. This provision in paragraph (a)(1) differs
from ABA Model Rule 3.3(a)(1), which requires a lawyer to disclose information
otherwise protected by Rule 1.6 if necessary to correct the lawyer’s
false statement. If Rule 1.6 permits a lawyer to disclose a client confidence
or secret, D.C. Rule 3.3(a)(1) requires the lawyer to disclose that
information to the extent reasonably necessary to correct a false statement
of material fact or law. Nothing in D.C. Rule 3.3(a)(1) limits any disclosure
duty under Rule 4.1(b) when substantive law requires a lawyer to disclose
client information to avoid being deemed to have assisted the client’s
crime or fraud. The obligation prescribed in Rule 1.2(e) not to counsel
a client to commit or assist the client in committing a fraud applies
in litigation but is subject to Rule 3.3(b) and (d). Regarding compliance
with Rule 1.2(e), see the Comment to that Rule. See also Rule
8.4.
Misleading Legal Argument
[3] 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 (a)(3), an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction that has not been disclosed
by the opposing party and that is dispositive of a question at issue.
The underlying concept is that legal argument is a discussion seeking
to determine the legal premises properly applicable to the case.
Offering Evidence
[4] When evidence that a lawyer knows to be false
is provided by a person who is not the client, the lawyer must refuse
to offer it 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.
[5] When false evidence is offered by the client,
however, 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 the evidence should not be offered
or, if it has been offered, that its false character should immediately
be disclosed. Regardless of the client’s wishes, however, a lawyer
may not offer evidence of a client if the evidence is known by the lawyer
to be false, except to the extent permitted by paragraph (b) where the
client is a defendant in a criminal case. The lawyer is obligated not
only to refuse to offer false evidence under subparagraph (a)(4) but
also to take reasonable remedial measures under paragraph (d) if the
false evidence has been offered.
[6] The prohibition against offering false evidence
applies only if the lawyer knows that the evidence is false. A lawyer’s
knowledge that evidence is false 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.
[7] Although paragraph (a)(4) prohibits a lawyer from
offering evidence only if the lawyer knows it to be false, it also 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
[8] Paragraph (d) provides that if a lawyer learns
that a fraud has been perpetrated on the tribunal, the lawyer must take
reasonable remedial measures. If the lawyer’s client is implicated
in the fraud, the lawyer should ordinarily first call upon the client
to rectify the fraud. If the client is unwilling to do so, the lawyer
should consider other remedial measures. The lawyer may not, however,
disclose information otherwise protected by Rule 1.6, unless the client
has used the lawyer’s services to further a crime or fraud and
disclosure is permitted by Rule 1.6(d). In other cases, the lawyer may
learn of the client’s intention to present false evidence before
the client has had a chance to do so. In this situation, paragraphs
(a)(4) and (b) forbid the lawyer to present the false evidence, except
in rare instances where the witness is the accused in a criminal case,
the lawyer is unsuccessful in dissuading the client from going forward,
and the lawyer is unable to withdraw without causing serious harm to
the client. In addition, Rule 1.6(c) may permit disclosure of client
confidences and secrets when the lawyer learns of a prospective fraud
on the tribunal involving, for example, bribery or intimidation of witnesses.
The terms “criminal case” and “criminal defendant”
as used in Rule 3.3 and its Comment include juvenile delinquency proceedings
and the person who is the subject of such proceedings.
Perjury by a Criminal Defendant
[9] Paragraph (b) allows the lawyer to permit a client
who is the accused in a criminal case to present false testimony in
very narrowly circumscribed circumstances and in a very limited manner.
Even in a criminal case the lawyer must seek to persuade the defendant-client
to refrain from perjurious testimony. There has been dispute concerning
the lawyer’s duty when that persuasion fails. Paragraph (b) requires
the lawyer to withdraw rather than offer the client’s false testimony,
if this can be done without seriously harming the client.
[10] Serious harm to the client sufficient to prevent
the lawyer’s withdrawal entails more than the usual inconveniences
that necessarily result from withdrawal, such as delay in concluding
the client’s case or an increase in the costs of concluding the
case. The term should be construed narrowly to preclude withdrawal only
where the special circumstances of the case are such that the client
would be significantly prejudiced, such as by express or implied divulgence
of information otherwise protected by Rule 1.6. If the confrontation
with the client occurs before trial, the lawyer ordinarily can withdraw.
Withdrawal before trial may not be possible, however, either because
trial is imminent, or because the confrontation with the client does
not take place until the trial itself, or because no other counsel is
available. In those rare circumstances in which withdrawal without such
serious harm to the client is impossible, the lawyer may go forward
with examination of the client and closing argument subject to the limitations
of paragraph (b).
Refusing to Offer Proof of a Non-client Known to Be False
[11] Generally speaking, a lawyer may not offer testimony
or other proof, through a non-client, that the lawyer knows to be false.
Furthermore, a lawyer may not offer evidence of a client if the evidence
is known by the lawyer to be false, except to the extent permitted by
paragraph (b) where the client is a defendant in a criminal case.
Duration of Obligation
[12] A practical time limit on the obligation to take
reasonable remedial measures concerning criminal and fraudulent conducted
related to the proceeding is needed. The conclusion of the proceeding
is an appropriate and 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. If the lawyer withdraws
before the conclusion of the proceeding, the lawyer’s obligation
ends at the time of withdrawal.
Withdrawal
[13] A lawyer’s compliance with the duty of
candor imposed by this rule might require that the lawyer withdraw from
the representation of a client. 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, or
with the requirements of Rule 1.6(c), results in the lawyer’s
inability to represent the client in accordance with these Rules. See
also 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 permitted by Rule 1.6.
