A lawyer is representing her celebrity client, Elliot Robinson. Opposing counsel is deposing Mr. Robinson, and asks: “Did anyone travel with you from your hotel to this deposition?” Mr. Robinson answers: “No.” Mr. Robinson’s lawyer knows that her client came to the deposition in a car with his driver and two assistants. What ethical obligations, if any, does the lawyer have?
As an initial matter, the lawyer is required to explain to her client that providing a false statement in a deposition could cause him substantial harm. Rule 1.4(b) of the ABA’s Model Rules of Professional Conduct requires a lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” In addition, Rule 1.4(a)(5) states that a lawyer shall “consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” In the above hypothetical, the client may expect the lawyer to assist him by keeping quiet about the false testimony, and not revealing it to opposing counsel. The lawyer is not allowed to provide such assistance, as will be shown below.
In explaining to the client the potential consequences of not answering deposition questions truthfully, the lawyer should instruct the client that he could (a) face criminal liability for perjury, making a false statement, and/or obstruction of justice; (b) face civil sanctions for contempt of court; and (c) expose himself to impeachment at trial, should opposing counsel learn of his false statement.
The lawyer is also required to explain her own obligations, in connection with the client’s deposition conduct. Rule 3.3(a) states that a lawyer “shall not knowingly . . . offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Similarly, if a lawyer represents a client in an adjudicative proceeding, and knows that a person “has engaged in criminal or fraudulent conduct related to the proceeding,” Rule 3.3(b) requires the lawyer to take “reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Comment 1 to Rule 3.3 clarifies that the rule applies to deposition testimony: “[Rule 3.3] requires a lawyer to take reasonable remedial measures if the lawyer comes to know that a client who is testifying in a deposition has offered evidence that is false.”
Rule 3.3(c) states that the duty to comply with Rule 3.3(a) and Rule 3.3(b) applies “even if compliance requires disclosure of information otherwise protected by Rule 1.6,” which, subject to certain exceptions, prohibits a lawyer from disclosing confidential information relating to a representation. One of those exceptions in Rule 1.6 applies when a client engages in crime or fraud, as discussed further below.
Rule 4.1 forbids a lawyer from knowingly “fail[ing] to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” Comment 3 to Rule 4.1 sets forth some of the remedial measures a lawyer must take to avoid assisting in a crime or fraud:
Ordinarily, a lawyer can avoid assisting a client's crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client's crime or fraud. If the lawyer can avoid assisting a client's crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.
As noted above, Rule 1.6 forbids a lawyer from revealing information relating to representation of a client without consent, unless an exception applies. Again the crime or fraud exception may be applicable. Under it, a lawyer “may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary . . . to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services” or to comply with the Rules.
