Rule 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) 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

(3) 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. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Background

The Louisiana Supreme Court adopted this rule on January 21, 2004. It became effective on March 1, 2004, and has not been amended since. This rule is identical to ABA Model Rule of Prof’l Conduct 3.3 (2002).

In 2002, the ABA reorganized the corresponding model 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. In some particulars, the ABA strengthened lawyers’ obligations to the tribunal. 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 former 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 former Rule to avoid assisting client crime or fraud was 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. See ABA Ethics 2000 Commission Revision Notes to Model Rule 3.3 (2002).

In one case, however, the ABA strengthened the lawyer’s obligation to the client, namely, when the lawyer represents the defendant in a criminal proceeding. In such a case, a lawyer does not have the same discretion regarding the client’s own testimony as do lawyers representing clients in civil proceedings. 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 his defense, the lawyer commits no ethical violation in allowing the client to do so even if the lawyer knows the client intends to lie. See id.

Paragraph (a) (1): False Statements to Tribunal

In 2002, the ABA deleted the term “material” of the former Model Rule 3.3(a)(1) that previously qualified the lawyer’s duty not to knowingly make false statements of fact or law to a tribunal, and brought this duty into conformity with the duty not to offer false evidence set forth in paragraph (a)(3). In addition, the ABA added a new phrase to address the lawyer’s duty to correct a false statement of material fact or law previously made to the tribunal, to parallel the duty to take remedial measures in paragraph (a)(3). See id.

Paragraph (a)(2): Duty to Disclose Client Crime or Fraud

In 2002, the ABA deleted paragraph (a)(2) of the former Model Rule, which formerly prohibited a lawyer from knowingly failing to disclose to the tribunal material facts when necessary to avoid assisting client crime or fraud. Instead, the ABA chose to address a lawyer’s duty to disclose crime or fraud in connection with a proceeding before a tribunal more comprehensively in paragraph (b). (Note also that lawyers have disclosure obligations under paragraphs (a)(1) and (a)(3), when they come to know of the falsity of statements previously made to the tribunal or evidence previously offered. The general duty to avoid assisting client crime or fraud is addressed in Rules 1.2(d) and 4.1.) See id.

Paragraph (a)(3): Remedial Measures

In 2002, the ABA amplified a lawyer’s duty to take remedial measures in connection with material evidence the lawyer comes to know is false and gave the lawyer discretion to refuse to offer evidence that the lawyer reasonably believes is false. It also extended a lawyer’s remedial obligations to situations in which 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.

Paragraph (b): Duty to Preserve Integrity of Adjudicative Process

In 2002, the ABA adopted paragraph (b) addressing the lawyer’s obligation to take reasonable remedial measures, including disclosure if necessary, when 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 incorporated the substance of former Model Rule 3.3 paragraph (a)(2), as well as two provisions of the ABA Model Code of Professional Responsibility. See ABA Model Code of Prof’l Responsibility DR 7-102(B)(2) (1969) (“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”); id. 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”).

Paragraph (c): Duration of Duties in Paragraphs (a) and (b)

In 2002, the ABA did not change the scope and duration of the lawyer’s duty of candor to the tribunal but extended it to paragraph (b).

Comments to ABA Model Rule 3.3

Generally

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of “tribunal.” It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition. Thus, for example, paragraph (a)(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.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative proceeding has an obligation to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client, however, is qualified by the advocate’s duty of candor to the tribunal. Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also Comment [9].

[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonably believes is false. Offering such proof may reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify. See also Comment [7].

Remedial Measures

[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client, or another witness called by the lawyer, offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done—making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing.

[11] The disclosure of a client’s false testimony can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as 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. Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary, whenever the lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this Rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal

[15] Normally, a lawyer’s compliance with the duty of candor imposed by this Rule does not require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s compliance with this Rule’s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to seek a tribunal’s permission to withdraw. In connection with a request for permission to withdraw that is premised on a client’s misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule or as otherwise permitted by Rule 1.6.

Annotations

Generally

A lawyer’s duty of candor to the tribunal is sometimes difficult to reconcile with responsibilities to clients. This rule is intended to provide guidance to lawyers facing such conflicts. On balance, this rule resolves most of these conflicts in favor of the lawyer’s duties to the tribunal and the justice system.

This Rule applies only in matters pending before a “tribunal.”[1] Thus, while it applies to matters pending before arbitrators, it does not necessarily apply in matters before nonjudicial mediators or in nonadjudicative proceedings. See In re Jones, 106 So. 3d 1019 (La. 2013) (finding no 3.3 violation for a lawyer’s filing false documents in the public conveyance records outside of a court). As to the candor obligations of lawyers appearing before mediators, see La. Rules of Prof’l Conduct Rule 4.1 (2004) (Truthfulness in Statements to Others). As to the disclosure obligations of a lawyer representing a client in a nonadjudicative proceeding, see La. Rules of Professional Conduct Rule 3.9 (2004) (Advocate in Nonadjudicative Proceedings); see also ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-375 (1993).

False Statements of Fact or Law

As to intentional false statements, paragraph (a)(1) prohibits a lawyer from “knowingly” making false statements of fact or law–whether material or immaterial–to the tribunal.[2] La. Rules of Prof’l Conduct R. 3.3(a)(1) (2004). See In re Lightfoot, 85 So. 3d 56, 61-62 (La. 2012) (disciplining lawyer for using a known fictitious name for client in bankruptcy pleading to avoid negative press attention for the client); see also Restatement (Third) of the Law Governing Lawyers § 111(1) (2000). Lawyers have been disciplined under this rule for, among other conduct, misrepresenting the status of other proceedings in motions to continue. See In re Bailey, 848 So. 2d 530, 537 (La. 2003). This obligation terminates at the conclusion of the “proceeding.” See La. Rules of Professional Conduct Rule 3.3(c) (2004).

As to inadvertent false statements, however, the rule requires the lawyer to correct only “material” falsities that the lawyer has “previously made to the tribunal.” La. Rules of Prof’l Conduct Rule 3.3(a)(1) (2004). Whether a fact is “material” is sometimes a difficult issue. No Louisiana case defines the term “material” for purposes of the Louisiana Rules of Prof’l Conduct. However, the Louisiana Supreme Court has held in another context that a “material fact” is one whose “existence or nonexistence” is “essential” to the resolution of a matter. See Smith v. Our Lady of the Lake Hosp., Inc., 639 So.2d 730, 751 (La. 1994), superseded by statute on other grounds, La. Code Civ. Proc. Ann. art 966 (2007). Likewise, in the context of securities law, a fact is “material” if it is one which an average, prudent person would consider important in making a decision. See, e.g., Simpson v. Se. Inv. Trust, 697 F.2d 1257, 1258 (5th Cir.1983) (holding that the standard for materiality with regard to misstatements is whether an average, prudent investor would consider the truth important in making investment decision); see also Dennis v. General Imaging, 918 F. 2d 496, 505 (5th Cir. 1990) (same). Therefore, a fact should be considered to be “material” for purposes of this rule if an ordinary judge would consider the fact “important” in the context asserted.

Adverse Authority

Paragraph (a)(2) requires a lawyer to disclose to the court or opposing counsel known legal authority “in the controlling jurisdiction” that is directly adverse[3] to a client’s position. Id. Rule 3.3(a)(2); see also Restatement (Third) of the Law Governing Lawyers § 111(2) (2000). The standard that lawyers should use for determining whether a potentially adverse authority must be disclosed is not whether it is precisely on point and dispositive of the relevant issue. Rather, the test is as follows: “Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding the case? Would a reasonable judge properly feel that a lawyer who advanced, as the law, a proposition adverse to the undisclosed decision was lacking in candor and fairness to him?” See ABA Comm. on Prof’l Ethics and Grievances, Formal Op. 280 (1949). This disclosure obligation terminates at the conclusion of the “proceeding.” Id. R.3.3(c).

Offering False Evidence

Paragraph (a)(3) addresses a lawyer’s obligations to the tribunal with regard to false documentary or testimonial evidence. As to evidence that the lawyer “knows” is false, paragraph (a)(3) prohibits the lawyer from offering it into evidence. Furthermore, a lawyer who has inadvertently done so must “take reasonable remedial measures.” Id. R. 3.3(a)(3); see also Restatement (Third) of the Law Governing Lawyers § 120 (2000). What remedial measures are “reasonable” in any given case turns on the circumstances. Clearly the lawyer must attempt to convince the client or other person who has offered the false testimony or document to correct the error. See Model Rules of Prof’l Conduct R. 3.3 cmts. 5-11. In addition, the lawyer may consider withdrawing from the representation. Id. cmt. 10. However, withdrawal alone typically will not satisfy the lawyer’s obligations under this rule, unless the withdrawal is “noisy”–that is, unless the lawyer discloses the false evidence to the tribunal at the time of withdrawal. Id. Finally, although some lawyers believe that they can comply with this rule through permitting their client (or other witness) to testify falsely in narrative form (that is, without questioning by the lawyer), the ABA has soundly rejected that approach. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987); ABA Stds. Relating to the Admin. of Crim. Justice–The Def. Function std. 4–7.5(a) (1992).

Although perhaps obvious, this rule applies in the context of civil pretrial discovery. See In re Marshall, 753 So. 2d 166, 167-68 (La. 2000) (disbarring lawyer for, among other things, advising clients to testify falsely in depositions). Therefore, this rule requires a lawyer to take reasonable “remedial measures” to correct the record when the lawyer learns that a client or another witness has testified falsely during a civil deposition or has otherwise furnished untruthful discovery responses. See, e.g., Jones v. Clinton, 36 F. Supp. 2d 1118, 1130 n.15 (E.D. Ark. 1999); Herman v. Zatzkis, 632 So. 2d 302, 304-05 (La. Ct. App. 4th Cir. 1993) (finding that lawyer failed to reveal false nature of backdated document offered into evidence); see also La. State Bar Ass’n v. White, 539 So. 2d 1216 (La. 1989). The lawyer may not simply withdraw from further representation in the matter. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Formal Op. 93-376 (1993).

A lawyer’s obligation to take “reasonable remedial measures,” terminates at “the conclusion of the proceeding,” and requires disclosure of information “otherwise protected by Rule 1.6.” See La. Rules of Prof’l Conduct Rule 3.3(c) (2004).

Disclosure Obligations Adjudicative Proceeding  

Paragraph (b) requires a lawyer in an adjudicative proceeding to “take remedial measures, including, if necessary disclosure to tribunal” when the lawyer knows of criminal or fraudulent activity involving the client. Id. R. 3.3(b). A lawyer’s compliance with this rule does not violate a client’s right to effective counsel. See Hill v. Tanner, No. 12-369, 2012 WL 4059899 at *6 (E. D. La July 5, 2012) (noting defense lawyer’s ethical obligation to disclose to the court that client engaged in witness tampering).  

Paragraph (d) requires a lawyer in an ex parte proceeding to “inform the tribunal of all material facts known to the lawyer” bearing on the issue before the tribunal in order to enable it to make an “informed decision.” Id. Rule 3.3(d). This rule applies broadly to all material facts–not just those that are “adverse” to the lawyer’s client. Id.; see also Restatement (Third) of the Law Governing Lawyers § 112 (2000).

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving conduct that is prejudicial to the administration of justice or that involves dishonesty, fraud, deceit, or misrepresentation to a court: disbarment, when a lawyer, with intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding; suspension, when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party or to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding; reprimand, when a lawyer is negligent either in determining whether statements or documents are false or in taking remedial action when material information is being withheld, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding; and, admonition, when a lawyer engages in an isolated instance of neglect in determining whether submitted statements or documents are false or in failing to disclose material information upon learning of its falsity, and causes little or no actual or potential injury to a party, or causes little or no adverse or potentially adverse effect on the legal proceeding. See ABA Stds. for Imposing Lawyer Sanctions stds. 6.11-6.14 (1992) (False Statements, Fraud, and Misrepresentation); id. std. 6.1. The Louisiana Supreme Court has not hesitated to impose the sanction of permanent disbarment for perjury. See In re Norris, 939 So. 2d 1221 (La. 2006).

Notes

This page was updated on August 2, 2013.

 

 



[1] The Rules define “tribunal” as “a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity….” See La. Rules of Prof’l Conduct Rule 1.0(m) (2004).

[2] For a case imposing discipline under this rule for false statements by a lawyer in his capacity as a litigant rather than as a lawyer, see In re Soileau, 737 So. 2d 23, 27 (La. 1999). See also In re Richmond, 996 So. 2d 282 (La. 2008) (disciplining a lawyer who was also a state representative for falsely representing his domicile on notarized Notice of Candidacy Form).

[3] The failure to cite cases overruling precedent cited in a brief may violate this rule. See State v. Harris, 911 So. 2d 361, 364 n.1 (La. Ct. App. 2d Cir. 2005) (admonishing lawyer “to avoid citing jurisprudence that announces obsolete or abrogated legal theories”).