No Duty to Correct False Deposition Testimony Says State Bar

An attorney has no duty to correct a client who lies while testifying at a deposition, according to a state bar’s ethics opinion. While recognizing a split on the issue, the ethics committee emphasized that, nevertheless, the state’s ethics rules prohibit a lawyer from using false testimony in support of his or her client’s case. ABA Litigation Section leaders believe that this situation may ultimately require the attorney’s withdrawal.

Disciplinary Rules Limit Attorney Conduct

In Opinion No. 692, the State Bar of Texas Professional Ethics Committee considered the ethical obligations of an attorney in a lawsuit arising from a car accident. In the fact pattern at issue, the deponent confided to his lawyer before deposition that his eyes were on his phone when the accident occurred. Still, the deponent maintained the accident was not his fault. The lawyer advised the deponent to testify honestly. Despite this, the deponent lied when examined about where he was looking during the accident. During a break, the attorney privately directed the deponent to admit he misspoke and to tell the truth instead. But the deponent refused and instructed counsel not to say anything.

The committee first considered whether these facts implicated Texas Disciplinary Rule 3.03’s ethical prohibition on an attorney making a false statement. But it decided that rule did not apply because only the deponent lied and not the attorney. It then considered whether the rule’s ethical prohibition on using false evidence applied. The committee decided that this rule also did not apply so long as the attorney did not use the testimony, such as by submitting it in support of a summary judgment motion.

The committee expressly did not address whether Texas Disciplinary Rule 3.03(a)(1) about false statements made before a tribunal applied to deposition testimony. It acknowledged that statements made at a deposition are not made before a tribunal, but it also recognized that tribunals authorize depositions. But it considered the issue irrelevant because it decided, even if that rule applied, the facts did not state a violation.

Attorney’s Silence Does Not Assist Perjury

The committee considered at length whether the facts presented violated Rule 3.03(a)(2), which prohibits assisting a criminal or fraudulent act. It noted that there has been a difference of opinion on the subject by other ethics committees. On one hand, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 93-376, which states that once a lawyer learns his or her client committed perjury, his or her continued representation “without rectification or disclosure would assist the client in committing a crime or fraud…” On the other hand, the Philadelphia Bar Association Professional Guidance Committee issued Ethics Opinion 95-3, concluding that representation of a client who committed perjury does not constitute “assistance” of perjury.

The committee determined that remaining silent after a client’s lie did not “assist” a crime or fraud. It applied the definition of “assistance” from criminal laws, which require “affirmative and knowing participation.” And it reasoned that the “passive witnessing” of perjury is not such an “affirmative” act.

The committee also acknowledged that ABA Model Rule of Professional Conduct 3.3(b) specifically requires attorneys to correct their clients’ false statements. But it observed that the Texas Disciplinary Rules did not state the same requirement, and so it did not read that requirement into those rules.

The committee emphasized that the attorney was obligated to refrain from using the false testimony in a motion or at trial. It also made clear that the attorney was obligated to correct the record if the testimony arose on direct examination because that would constitute the attorney’s own offering of false evidence.

Attorney Should Not Continue to Represent a Dishonest Deponent

Litigation Section leaders agree that an attorney who witnesses her client lying at a deposition should immediately urge the deponent to tell the truth. “Taking a break, talking to the client, and getting the record corrected” is a good idea, suggests John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee.

Similarly, a lawyer should “take a break to get the client out of the room to explain the situation,” says Sherilyn Pastor, Newark, NJ, cochair of the Section’s Trial Evidence Committee.

In addition, a lawyer in that situation may need to avoid the appearance of supporting the false testimony. “Even if you were planning on cross-examining the witness, the safer course is to stand silent,” counsels Pastor. She notes that, although the lawyer may ethically “defend on unrelated subjects,” he or she “may be trying to split hairs later” when distinguishing his or her questions from subjects that are off-limits.

If the client refuses to follow the lawyer’s advice, Section leaders believe the lawyer may need to withdraw from the matter, despite the Committee’s opinion. Since the lawyer cannot use the lie in support of the client’s case, “the client’s interest and the lawyer’s interest begin to diverge,” explains Warrington Parker, San Francisco, CA, cochair of the Section’s Criminal Litigation Committee.

Even if the lawyer does not need to withdraw immediately, he or she “seems to be in an untenable position by continuing the representation through trial in Texas if the witness is going to lie at trial,” concludes Barkett.