Tommy Hicks posted a site on Candor which is very interesting and educational. Some additional points which I copied from the same site are:
A lawyer who receives information clearly establishing that:
(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. (emphasis added).
with Model Rules of Professional Conduct [hereinafter cited as Model Rules or Rule], Rule 3.3, promulgated in 1983:
Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to 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; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by rule 1.6. (emphasis added).
See also ABA Comm. on Ethics and Professional Responsibility, Formal Opinion 87-353 (1987) (decided under the Model Rules and discussing ABA Formal Opinion 287 (decided under the Canons of Professional Ethics) and ABA Informal Opinion 1314 (decided under the Model Code.)
20. 17. Model Rule 3.4 Fairness to Opposing Party and Counsel.
A lawyer shall not:
(a) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by laws;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless;
(1) the person is a relative or an employee or other agent of a client; and
(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
Model Rule 4.1 Truthfulness in Statements to Others.
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
21. 18. This is the position taken in ABA Comm. on Ethics and Professional Responsibility, Formal Opinion 87-353 (1987).
22. 1. However, there are those who advocate disclosure here. See M. Frankel, "The Search for Truth Continued: More Disclosure, Less Privilege," 54 U. Colo. L. Rev. 51 (1982), for the argument that a lawyer in a civil case should disclose all material evidence favorable to the other side.
23. 2. Miranda v. Arizona, 384 U.S. 436 (1966) (Harlan, J., dissenting); Kerwit Medical Prod., Inc. v. N & H Instruments, Inc., 616 F.2d 833, 837 (5th Cir. 1980). For a contrary view, see G. Glaser, "A New Law of `Supply and Demand' in Discovery," 69 A.B.A.J. 320 (1983), supporting a rule that would require a party making a civil claim to disclose all evidence on which its claim is based.
24. 3. A great deal of debate arises to when a lawyer "knows" that evidence or a statement is false. See E. Kimball, "When Does a Lawyer `Know' Her Client Will Commit Perjury?" 2 Geo. J. Legal Ethics 579 (1988). While factual disputes are always present in civil litigation, a lawyer cannot avoid knowing the falsity of a statement through deliberate ignorance or disregard of the obvious.
25. 4. Model Code, DR 7-102(B)(1).
26. 5. Model Rule 3.3(b). A full discussion of this issue is beyond the scope of this Chapter. See M. Freedman, Lawyers' Ethics in an Adversary System (1975), for staunch support of an unqualified attorney-client privilege in the context of client perjury and M. Frankel, "The Search for Truth: An Umpireal View," 123 U. Pa. L. Rev. 1031 (1975), for an opposing view.
27. 6. 796 F. Supp. 938 (S.D. W. Va. 1992). As this Chapter was being written, an appeal in this case was pending in the Fourth Circuit.
28. 7. The stay was requested after the local United States Attorney was advised of the employee's false testimony.
29. 8. For other authority on the duty to disclose false deposition testimony, see Va. State Bar Standing Comm. on Legal Ethics, Opinion 1451 (1992); Rhode Island Supreme Court Ethics Advisory Panel, Opinion 91-76 (1991).
30. 9. The lawyer obtained a bondsman for the client and informed him of the client's false identity. The bondsman, but not the lawyer, accompanied the client before the bail officer.
31. 10. At the arraignment, the client used his correct identity and the court did not inquire as to prior convictions.
32. 11. Conn. Bar Ass'n Comm. on Professional Ethics, Opinion 87-8 (1987).
33. 12. N.J. Sup. Ct. Advisory Comm. on Professional Ethics, Opinion 643 (1990).
34. 13. New Mexico State Bar Advisory Opinions Comm., Opinion 1985-6 (1985).
35. 14. The Florida Bar v. Colee, 533 So. 2d 767 (Fla. 1988).
36. 15. Kath v. Western Media, Inc., 684 P.2d 98 (Wyo. 1984); see also Conn. Bar Ass'n Comm. on Professional Ethics, Opinion 91-20 (1991) (lawyer representing closely held corporation must disclose material misrepresentations by pro se co-defendant who controls corporation).
37. 16. Schmeusser v. Schmeusser, 559 A.2d 1294 (Del. 1988).
38. 17. In re Nigohosian, 442 A.2d 1007 (N.J. 1982).
39. 18. Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983).
40. 19. United States v. Envirite Corp., 143 F.R.D. 27 (D. Conn. 1991); see also Garcia v. Silverman, 334 N.Y.S.2d 474 (N.Y. tr. ct. 1972) (attorney who requested stay of administrative proceedings, but failed to disclose that the request had already been denied by another court, violated ethical duties); Itel Containers International Corp. v. Puerto Rico Marine Management, Inc., 108 F.R.D. 96 (D.N.J. 1985) (sanctions imposed against party and counsel for improperly withholding information indicating that court lacked jurisdiction to hear matter).
41. 20. See In re Whitmore, 569 A.2d 252 (N.J. 1990); In re Norton, 608 A.2d 328 (N.J. 1992).
42. 21. Va. State Bar Comm. on Legal Ethics, Opinion 1400 (1991). See also Nat'l Ass'n of Criminal Defense Lawyers Ethics Adv. Comm., Formal Opinion 90-4 (1990) (lawyer has no duty to inform trial court that it has unknowingly committed reversible error). But see Sanders v. State, 260 So.2d 466 (Miss. 1972) (counsel required to inform court that witness has not been sworn).
43. 22. Mich. State Bar Comm. of Professional and Judicial Ethics, Opinion CI-1164 (1987).
44. 23. Md. State Bar Ass'n Comm. on Ethics, Opinion 88-63 (1988).
45. 24. See Model Rule 3.3(d). See also Addison v. Brown, 413 So. 2d 1240 (Fla. App. 1982), aff'd sub nom. Lubin v. District Court of Appeals Fifth District of Florida, 428 So. 2d 663 (Fla. 1983) ("where a last minute petition is filed it is mandatory that counsel not only act in good faith, but that the petition and the attached appendix accurately and completely reflect all factual matters which may affect this court's decision").
46. 25. Model Code, DR7-106(B)(1); Model Rules, 3.3(a)(3).
47. 26. Dorso Trailer Sales, Inc., v. American Body & Trailer, Inc., 464 N.W.2d 551 (Minn. Int. App. Ct. 1990).
48. 27. See generally United States v. Collins, 920 F.2d 619 (10th Cir. 1990), cert, denied, ____ U.S. ____, 111 S. Ct. 2022 (1991); Reed v. Iowa Marine & Repair Corp., 1992 WL 211580 (E.D. La. 1992); R.I. Supreme Court Ethics Advisory Panel, Opinion 91-39 (1991).
49. 1. American Airlines v. Allied Pilots Ass'n., 968 F.2d 523 (5th Cir. 1992).
50. 2. Id. at 527.
51. 3. Id.
52. 4. United States v. Collins, 920 F.2d 619 (10th Cir. 1990), cert. denied, ____ U.S. ____, 111 S. Ct. 2022 (1991).
53. 5. People v. Simac, 603 N.E.2d 97 (Ill. Int. App. Ct. 1992).
54. 6. United States v. Shaffer Equip. Co., 796 F. Supp. 938 (S.D. W. Va. 1992).
55. 1. In re Integration of Nebraska State Bar Ass'n., 275 N.W. 265, 268 (Neb. 1937
An attorney owes his first duty to the court. He assumed his obligations toward it before he ever had a client. His oath requires him to be absolutely honest even though his client's interests may seem to require a contrary course. The [lawyer] cannot serve two masters and the one [the lawyer has] undertaken to serve primarily is the court.(55)
In fulfilling ethical duties, the lawyer has an ethical obligation to avoid misleading the court and to take steps to protect the court from misrepresentations by others, even if the misrepresentations would aid the lawyer's client. While some who criticize a lawyer's underhanded tactics may also protest when those same tactics are not used in their behalf, the public's confidence in the legal system and its practitioners will be bolstered by observing the duty of candor. Strict compliance with this and other ethical obligations will allow one to achieve the lawyer's mission of zealous representation within the bounds of the law.
1. 1. R. Kutak, "The Adversary System and the Practice of Law," The Good Lawyer ch. 7 (D. Luban ed. 1983).
2. 2. This is not a view recently formed, as evidenced by the American Bar Association's Canons of Professional and Judicial Ethics, Canon 15 [hereinafter cited as Canons of Professional Ethics], adopted in 1908:
õ 1.04. Sanctions for Violation of Duty.
Since it is an ethical violation, a violation of the duty of candor is usually addressed by a bar's disciplinary board or committee. Sanctions may range from reprimand to disbarment, depending upon the circumstances of each case. Because they are directly affected by a violation of this duty, however, courts often impose sanctions independent of professional disciplinary measures. Sanctions available to the court include fines,(49) suspension from practice before the court,(50) striking the lawyer from the record in a particular case,(51) revoking a lawyer's pro hac vice status,(52) and charges of criminal contempt.(53) If the misconduct is shared by the lawyer's client, the court may bar the admission of evidence or dismiss the client's claims.(54)
õ 1.05. Conclusion.
A lawyer's ethical obligations alter this general rule with respect to evidence known by the lawyer to be false(24) and offered in support of his client's position. It is contemplated that the adversarial nature of our system, through investigation by a party, will reveal the falsity of any evidence offered by the other side. Nevertheless, adequate investigation may not be made, the evidence may be within the sole possession of the offering party, or it otherwise may not be available to the opposing side. In these cases, the true facts will not be revealed without additional safeguards. Accordingly, counsel is prohibited from knowingly offering false evidence and, upon discovering that false evidence has been submitted unknowingly, required to take remedial action.
This duty to disclose false evidence was included in both the Model Code and the Model Rules. The primary difference between the two is the resolution of the conflict between the duty of candor and the duty to maintain a client's confidences. This conflict arises most often in the context of client perjury or fraud. The lawyer usually learns of the client's misconduct through communications protected by the attorney-client privilege. The Model Code, as amended, subordinated the duty of candor to the duty to preserve client confidences.(25) The Model Rules adopted the opposite approach.(26) |
