Issue-Spotting Candor Problems

Issue-Spotting Candor Problems

Rule 3.3(a) asks two separate questions, and keeping them apart is most of the skill. The first: did the lawyer make a false statement of fact or law to a tribunal, or fail to correct a false statement of material fact or law that the lawyer had made to it earlier?¹ The second: did the lawyer fail to disclose legal authority from the controlling jurisdiction that the lawyer knew to be directly adverse to the client's position and that opposing counsel had not disclosed?² The first concerns the lawyer's own words. The second concerns law the lawyer holds and the court may lack. Each branch has its own triggers, so each needs its own pass through the facts. This unit sorts only these two duties; the rule has others, and a problem built on them needs its own analysis.

Steps one and four are quick screens, and steps two and three are where most exam points are won or lost. A lawyer who made no statement and left nothing uncorrected is outside the first clause at once, and a lawyer who knows of no authority from the controlling jurisdiction is outside the second. After those screens, knowledge does the most work because it separates conscious deception from honest error. A lawyer who merely suspects that a statement is false has not acted knowingly. A lawyer whose research sincerely missed a decision has not acted knowingly either, though the lapse remains a competence failure. Confidentiality does not appear in the sequence because it does not change the answer: the duty to correct reaches even information otherwise protected by Rule 1.6, so a client's wish for secrecy settles nothing at step three.

Hartley clears every step of the statement branch. The words were his own, spoken to the tribunal, known by him to be false, material to the ruling, and delivered while the motion was pending. The false-statement clause is violated even though the falsehood was meant to help his client. Both lawyers hold a fact the other side would like to use, so the difference lies entirely in what each one said. Sandoval made no assertion on the subject, and a lawyer need not volunteer an unfavorable fact. Her silence would change character only if it left something she had said misleading, or hid a fact going to the foundation of the proceeding, and neither is present.

The authority branch invites a different wrong instinct, which is to treat the duty as owed to the opponent. An exam stem will describe a lawyer who learns of a new decision and files a brief citing it without first telephoning opposing counsel, and the tempting answer is that a courtesy has hardened into a breach. A pair of zoning appeals shows why that answer fails.

Teague complied with the rule. She disclosed the authority to the tribunal, the duty runs to the tribunal, and the opponent's discovery of the decision through ordinary service is only an incidental result.³ Whitcomb violated the rule when he filed. At that moment the decision was undisclosed, known to him, and directly adverse, and his plan to deal with it only if the county raised it does not excuse the omission. Had his research simply missed the decision, he would have fallen short on competence but not on candor, since the duty reaches only authority the lawyer knows.

Two reminders keep the sequence from being over-applied. The rule imposes no general duty to volunteer unfavorable facts. A lawyer who stays silent about harmful facts in a contested hearing, asserting nothing false and leaving no earlier statement misleading, has nothing to correct and nothing to disclose. The adversary system explains the result, since each side builds its own record and a lawyer cannot be asked to argue the opponent's case. Second, the authority duty runs to the court and not to opposing counsel, so disclosure in the filing or argument satisfies it and no separate notice to the opponent is owed.⁴ Each reminder has an edge that the sequence already marks. Silence becomes a false statement when it leaves something the lawyer said misleading, and the authority duty goes unmet if the decision was not before the court when the lawyer filed or argued.