Candor Toward the Tribunal

False Statements and Adverse Authority

Candor Toward the Tribunal

A lawyer before a judge works under two commands of different strength. The first says never lie to the court. The second says that in a narrow class of cases the lawyer must hand the court something the client would rather it never saw. Model Rule 3.3 holds both commands, along with the other duties a lawyer owes a tribunal while representing a client in a proceeding before it.¹

The first command bars a lawyer from making a false statement of fact or law to the tribunal. It also requires the lawyer to correct a false statement of material fact or law that the lawyer made earlier.² The second requires the lawyer to disclose legal authority in the controlling jurisdiction that the lawyer knows to be directly adverse to the client's position and that opposing counsel has not disclosed.³ The first is a duty of truthfulness. The second is a duty of candor, and the two are not the same thing.

The professional rules make truthfulness the baseline for a lawyer's dealings generally. Rule 4.1, for example, requires truthfulness when a lawyer represents a client in transactions with others, including non-adjudicative matters. Candor is the exception, imposed only in particular situations, and the tribunal rules are among them: truthfulness is the rule for lawyers, and candor is the exception.⁴ The comment to Rule 3.3 draws the line in two clauses. A lawyer in an adversary proceeding need not present a disinterested exposition of the law or vouch for the evidence. The lawyer must not, however, allow the tribunal to be misled by false statements of law or fact, or by evidence the lawyer knows to be false.⁵

Courts can credit what lawyers tell them because a false statement exposes the lawyer to discipline. In United States v. Koubriti, the court gave considerable deference to the Attorney General's letter on matters of intent within his own personal knowledge. The letter was unsworn, but the court found it carried comparable indicia of truthfulness because a statement later shown to be untrue could bring disciplinary measures.⁶

Alvarez and Okafor each know something that hurts their side, yet only Alvarez has broken the rule. He spoke falsely about the law, which is exactly what the first command forbids. Okafor only stayed silent, and the default of truthfulness does not require her to volunteer unhelpful facts. Had Alvarez merely left the comparative negligence statute out of his brief, the analysis would have moved to the second command, because controlling law is the chief place in litigation where candor overrides silence. A litigator holds a dual trust: a fiduciary duty to the client and a parallel obligation to the court. When disclosing a controlling authority would harm the client but is required to honor the court, the conflict is resolved in favor of disclosure.⁷

The rule also reaches beyond the courtroom. It governs a lawyer representing a client in the proceedings of a tribunal, and it applies as well to an ancillary proceeding conducted under the tribunal's adjudicative authority, such as a deposition. If a client testifying at a deposition offers evidence the lawyer comes to know is false, the rule requires reasonable remedial measures.⁸ The rule's provisions on false evidence receive separate treatment.