September 10, 2013 Top Story

Lawyers' Duty to Disclose False Evidence May Extend Indefinitely

Even after the conclusion of a proceeding, lawyers must take action

Angela Foster

Until recently, New York Ethics Rules were silent regarding the endpoint to the lawyer’s obligation to circumvent his or her duty of confidentiality and disclose a client’s criminal or fraudulent conduct.  In Formal Opinion 2013:2, the New York City Bar Association Committee on Professional Ethics (New York Ethics Committee) found the lawyer’s obligation may last indefinitely—ending only when reasonable remedial measures are no longer available. 

New York Rule 3.3

Rule 1.6 of the Model Rules of Professional Conduct prohibits an attorney from revealing confidential information relating to the representation of a client.  Model Rule 3.3 provides an exception to that confidentiality rule – stating if a lawyer, the lawyer’s client, or a witness called by the lawyer has offered false material evidence, the lawyer is obligated to take “reasonable remedial measures.”  Under Model Rule 3.3(c), the lawyer’s duty of candor continues to the conclusion of the proceeding.

In 2009, New York adopted the Model Rules format and amended a number of its rules.  New York did not, however, adopt the amendments to the ABA Model Rule 3.3, including Rule 3.3(c).  Thus, unlike the Model Rules, there is no specified endpoint for the attorney’s obligations to the attorney’s duty to reveal criminal or fraudulent behavior to the tribunal.  Only VirginiaWisconsin and New York have adopted versions of Rule 3.3 that do not specify whether the obligation survives beyond the proceeding.

How Long Does the Obligation Last under New York Law? 

In Opinion 2013-2, the New York Ethics Committee addressed whether, under New York law, an attorney was obligated to take “reasonable remedial measures” to disclose false evidence to a tribunal even though the proceeding in question had concluded.  As the committee posed the question, “How long does the obligation under Rule 3.3(a) (3) last?”

The committee refused to issue a bright-line ruling to the question. Instead, it ultimately found, “the duties imposed by [the rule] should end when a ‘reasonable’ remedial measure is no longer available.”

Fortunately, the committee provided some additional guidance to this seemingly indefinite ending. Specifically, it focused on the term, “reasonable remedial measures,” and found that such measures could only be taken if they are likely to correct the threat to the adjudicative process caused by the false evidence. Thus, it found an attorney’s duty to disclose only comes into play if it is somehow still possible to disclose new evidence either to the tribunal to which the false evidence was presented or to a tribunal that could review the decision of the prior tribunal. Additionally, it found the tribunal must still be in a position to consider the new evidence and reopen the matter and/or amend, modify, or vacate the prior judgment. 

Some attorneys are perplexed by the ruling, and feel despite the lengthy discussion of the definition of “remedial measures,” the opinion provides no real guidance at all. The rule basically creates an indefinite obligation, and would have benefited from a more “bright line guidance,” says Thomas G. Wilkinson, Jr., Philadelphia, cochair of the Conflicts of Interest Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee. “The New York version of the rules leaves it to the lawyer’s judgment when remedial measures would potentially eliminate or mitigate the effects of the false testimony,” he says.  “Divining that time frame will not always be a simple judgment call and could require some research as to the extraordinary remedies that may be available to seek to reopen, amend, or modify rulings by a court, agency, or arbitration panel.” 

Practical Take-Aways—Know Your Client and Your Obligations

Indefinite or not, when a lawyer in New York discovers that material evidence offered was false, lawyers just to need realize they have to carefully analyze how to comply with Rule 3.3, says Barry E. Cohen, Washington, D.C., cochair of the Multi-Jurisdictional Practice Subcommittee of the Section of the Section’s Ethics and Professionalism Committee.  That applies even if the knowledge of the conduct comes to the attorney’s attention after the proceeding has concluded.

From a practical standpoint, Cohen points out, attorneys should always “make the clients aware of the risk in submitting false evidence and your responsibility.” Clearly, he says, “no attorney wants to be known as an attorney who rats on his client, but also does not want to be known as the attorney who knowingly submits false evidence.”

Lawyers should “operate on the assumption that courts will likely view any knowing falsehood as material, even if the lawyers do not,” says Wilkinson.  Thus, he advises, “lawyers should err on the side of disclosure to the tribunal, even if the knowingly false statement of fact might arguably have no impact on the outcome of the proceeding. The court may well view the fact to be material, especially if the fact is one referenced in the court’s opinion or judgment.”

Reasonable Remedial Steps

According to Wilkinson and Cohen, upon discovering that false material evidence was presented, a lawyer should consider taking the following measures: 

(i) The lawyer should first remonstrate with the client and seek the client’s cooperation in making a disclosure that will correct the record. 

(ii) If the client will not cooperate in making the remedial disclosure, or the client cannot be located despite reasonable efforts, then the lawyer should make the disclosure based on the following guidance.

(iii) If it is still possible to amend, modify, or vacate the prior judgment, then the lawyer must disclose the false evidence to the tribunal, and simultaneously to opposing counsel, or to the opposing party if opposing counsel is no longer practicing law. Importantly, disclosure to opposing counsel, by itself, will not be considered a reasonable remedial measure unless it remedies the threat to the integrity of the adjudicative process.

(iv) If it is still possible to reopen the proceeding based on this disclosure, then the lawyer must disclose to the tribunal to which the evidence was presented that the specified evidence was false. 

(v) If it is no longer possible to reopen the proceeding but another tribunal could amend, modify, or vacate the prior judgment, then the lawyer must disclose the falsity to the opposing counsel, or the opposing party if opposing counsel no longer represents the opposing party and there is no successor counsel. Once a proceeding has concluded, the tribunal that entered the final judgment may be powerless to take action, although another tribunal may have the power to amend, modify, or vacate the judgment.

Angela Foster is an associate editor for Litigation News.

Keywords: ethics, client confidentiality, Rule 3.3, reasonable remedial measures, duty to disclose, false information

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