Model Rule 3.3

Reporter’s Explanation of Changes

The Commission has revised and reorganized this Rule to clarify a lawyer’s obligation of candor to the tribunal with respect to testimony given and actions taken by the client and other witnesses. The commentary was reorganized and expanded to address some recurring situations not directly addressed in the Rule. In some particulars, the lawyer’s obligations to the tribunal have been strengthened. For example, the Rule now makes clear that the lawyer must not allow the introduction of false evidence and must take remedial steps where the lawyer comes to know that material evidence offered by the client or a witness called by the lawyer is false – regardless of the client’s wishes. As under the existing Rule, the lawyer’s obligations to the tribunal may require the lawyer to reveal information otherwise protected by Rule 1.6. The lawyer’s obligation in the existing Rule to avoid assisting client crime or fraud is replaced by a broader obligation to ensure the integrity of the adjudicative process. The lawyer must take remedial measures whenever the lawyer comes to know that any person is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, such as jury tampering or document destruction.

In one special case, however, the lawyer’s obligation to the client has been reaffirmed and strengthened, and that is where the lawyer represents the defendant in a criminal proceeding. For the first time the Rule text will address the special obligations of a criminal defense lawyer, providing that such a lawyer does not have the same discretion as other lawyers regarding the client’s own testimony. While a criminal defense lawyer is subject to the general rule prohibiting the offering of testimony the lawyer knows to be false, the lawyer may not refuse to allow a defendant to testify in the defendant's defense if the lawyer only reasonably believes the testimony will be false. The commentary also provides that where a court insists that a criminal defendant be permitted to testify in the defendant's defense, the lawyer commits no ethical violation in allowing the client to do so even if the lawyer knows the client intends to lie.

TEXT:

1. Paragraph (a)(1): Amplify lawyer’s duty not to make false statements to tribunal and add obligation to correct false statements previously made

The Commission recommends deletion of the term "material" that presently qualifies the lawyer’s duty not to knowingly make false statements of fact or law to a tribunal, bringing this duty into conformity with the duty not to offer false evidence set forth in paragraph (a)(3). A new phrase addresses the lawyer’s duty to correct a false statement of material fact or law previously made to the tribunal, also paralleling the duty to take remedial measures in paragraph (a)(3).

2. Paragraph (a)(2): Delete existing provision on lawyer’s duty to disclose client crime or fraud

The Commission is deleting current paragraph (a)(2), which provides that a lawyer shall not knowingly fail to disclose to the tribunal material facts when necessary to avoid assisting client crime or fraud. The lawyer’s duty to disclose crime or fraud in connection with a proceeding before a tribunal is now addressed more comprehensively in paragraph (b). The lawyer also has disclosure obligations under paragraphs (a)(1) and (a)(3), where the lawyer comes to know of the falsity of statements previously made to the tribunal or evidence previously offered. A lawyer’s general duty to avoid assisting client crime or fraud is addressed in Rules 1.2(d) and 4.1.

3. Paragraph (a)(3): Amplify duty to take remedial measures in connection with material evidence lawyer comes to know is false and include discretion to refuse to offer evidence lawyer reasonably believes is false

The Commission is amending current paragraph (a)(4) to extend its remedial obligations to situations where the lawyer’s client or a witness called by the lawyer has offered material evidence that the lawyer subsequently comes to know is false. Required remedial measures may, if necessary, include disclosure to the tribunal.

The Commission has also transferred to this paragraph the substance of current paragraph (c), which permits a lawyer to refuse to offer evidence that the lawyer reasonably believes (but does not know) is false. This grant of discretion, however, has been limited so it will not apply to the testimony of a client who is exercising the constitutional right to testify in a criminal case.

4. Paragraph (b): Duty to preserve integrity of adjudicative process

The Commission recommends adoption of a new provision (b) addressing the lawyer’s obligation to take reasonable remedial measures, including disclosure if necessary, where the lawyer comes to know that a person is engaging or has engaged in any sort of criminal or fraudulent conduct related to the proceeding. This new provision incorporates the substance of current paragraph (a)(2), as well as ABA Model Code of Professional Responsibility DR 7-102(B)(2) ("A lawyer who receives information clearly establishing that a person other than the client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal") and DR 7-108(G) ("A lawyer shall reveal promptly to the court improper conduct by a venireperson or juror, or by another toward a venireperson or juror or a member of the venireperson’s or juror’s family, of which the lawyer has knowledge").

5. Paragraph (c): Duration of duties in paragraphs (a) and (b)

The Commission is not changing the scope and duration of the lawyer’s duty of candor to the tribunal but extending it to paragraph (b).

COMMENT:

[1] This new Comment explains that the duties contained in Rule 3.3 apply in all proceedings before a "tribunal" as defined in Rule 1.0(m). It explains that they also apply in ancillary proceedings conducted pursuant to a tribunal’s adjudicative authority, such as a deposition.

[2] The revisions to current Comment [1] clarify that a lawyer has a duty to avoid conduct that undermines the integrity of the adjudicative process and in this regard must not allow the tribunal to be misled by false statements of law or fact.

Caption The caption "Legal Argument" more accurately describes the subjects addressed in Comment [4].

[4] The change reflects paragraph renumbering in the Rule text. No change in substance is intended.

Caption The caption "Offering Evidence" more accurately describes the subjects addressed in Comments [5] through [9].

[4] This Comment has been replaced by Comment [5].

[5] This Comment has been replaced and supplemented by Comment [9].

[5] This new Comment replaces current Comments [4] and [5] and explains that paragraph (a)(3) prohibits a lawyer from offering testimony or other evidence the lawyer knows is false, regardless of the client’s wishes. Unlike the current Rule, paragraph (a)(3) extends to evidence provided by the client. The Comment explains that a lawyer does not violate the Rule if the lawyer knowingly elicits false testimony for the purpose of subsequently establishing its falsity.

[6] This new Comment explains the lawyer’s duty where the lawyer’s client intends to testify falsely or wants the lawyer to introduce false testimony. The lawyer must seek to dissuade the client and, if this is unsuccessful, must refuse to offer the false evidence.

[7] This new Comment explains that the duties in paragraphs (a) and (b) apply to defense counsel in criminal cases. Where a court requires a lawyer to permit a criminal defendant to give testimony that the lawyer knows is false, however, the obligation of the advocate under these Rules is subordinate to such a requirement.

[8] This new Comment explains that while the prohibition against offering false testimony in paragraph (a) applies only where the lawyer knows that the evidence is false, such knowledge may be inferred from the circumstances.

Caption The caption "Refusing to Offer Proof Reasonably Believed to Be False" has been deleted because the Comment to which it referred in now subsumed under "Offering Evidence."

[9] This Comment, which revises current Comment [14], explains that while paragraph (a)(3) prohibits a lawyer from offering evidence that the lawyer knows is false, a lawyer may refuse to offer evidence that the lawyer only reasonably believes is false, including evidence offered by the client – except where the client is a defendant in a criminal case. Because of the special protections historically provided criminal defendants, criminal-defense counsel do not have the same latitude to refuse to offer client testimony they reasonably believe (but do not know) is false. (See also Comment [7] supra.)

Caption The caption "Perjury by a Criminal Defendant" has been deleted because of the deletion of current Comments [7] through [10].

[7] through [10] These Comments have been deleted as no longer helpful to the analysis of questions arising under this Rule. No change in substance is intended.

[10] This Comment revises and expands upon current Comment [11] to describe the remedial steps a lawyer must take if the lawyer is surprised by a witness’s false testimony or where the lawyer subsequently comes to know that evidence the lawyer has offered is false. These steps include remonstrating with the client, consulting with the client about the lawyer’s duty of candor to the tribunal and withdrawing from the representation. If necessary to remedy the situation, the lawyer may make disclosure to the tribunal even if doing so would require the lawyer to reveal information otherwise protected by Rule 1.6.

[11] The revisions to current Comment [6] are editorial in nature. No change in substance is intended.

Caption A new caption, "Preserving Integrity of Adjudicative Process," was added to highlight the Comment [12] discussion of paragraph (b).

[12] This new Comment explains the obligations imposed by paragraph (b), where the lawyer knows that any person intends to engage, is engaging or has engaged in criminal or fraudulent conduct that undermines the integrity of the adjudicative process. Examples of such conduct are 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. This could include lies or misrepresentations by the opposing party or witnesses called by the opposing party, which are not covered by paragraph (a)(3). The obligations imposed by this paragraph will ordinarily subsume those imposed by current paragraph (a)(2), which has been deleted.

Caption The caption "Constitutional Requirements" has been deleted because the discussion of constitutional requirements in current Comment [12] has been incorporated into Comments [7] and [9].

[12] This Comment has been deleted because the issues it addressed are now addressed in Comments [7] and [9].

[13] Revisions to this Comment explain that the obligation of candor to the tribunal continues until a final judgment has been affirmed on appeal or the time for review has passed.

Caption The new caption "Withdrawal" sets off the discussion in new Comment [15].

[15] This new Comment explains the relationship between a lawyer’s compliance with the duty of candor to the tribunal and the lawyer’s obligation to withdraw from the representation under Rule 1.16. While a lawyer’s compliance with the Rule does not normally require withdrawal, the lawyer may be obliged to seek the tribunal’s permission to withdraw if there results "such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client." The Comment also addresses the issue of disclosure in circumstances where withdrawal is permitted but not required.

Return to Report Home Page | Return to Ethics 2000 Home Page | Return to Center Home Page

Advertisement