Candor and Zealous Advocacy

Perjury and Fraud on the Court

Candor and Zealous Advocacy

Lawyers hear early and often that their job is zealous advocacy, and the motto misleads unless it is read in full: zealous advocacy within the bounds of the law. The most important bound is that a lawyer must never knowingly present false evidence, including witness testimony, to a tribunal.¹ Rule 3.3, titled candor toward the tribunal, states that limit.² It stands beside the criminal law of perjury and obstruction of justice and the courts' common-law power to punish contempt.³

The limit exists because the adjudicative process runs on reliance. Judges, juries, and opposing counsel make factual and legal decisions on the information lawyers present, so the legal system requires lawyers, as officers of the court, to present it truthfully. Without that duty, the integrity of the process would be severely undermined.⁴ A knowingly false witness or exhibit gives the factfinder a corrupted account of events, and the factfinder depends on the lawyer for that account. The rule therefore holds firm however much the lie might help the client.

The rule's baseline is truthfulness, and truthfulness is not the same as candor.⁵ A person speaks truthfully when everything said is believed to be true. A person is candid only by disclosing all the relevant information. To make a false statement is to lie, but to withhold relevant information is merely to be reticent. Rule 3.3 forbids the lawyer to offer falsehoods. Its duties to act arise in defined situations, and two matter most here: when a lawyer comes to know that material evidence already offered is false,⁶ and when a lawyer knows that a person is engaged in criminal or fraudulent conduct related to the proceeding.⁷

The civil lawyer's silence stays safe only while it remains silence. If she comes to know that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, the separate duty to take reasonable remedial measures applies.⁸ Nor does the rule stop at the courtroom door. Tribunal is a defined term in Rule 1.0(m),⁹ and the comment to a state version of the rule applies it to ancillary proceedings conducted under the tribunal's adjudicative authority, such as a deposition. If the lawyer comes to know that a client testifying at a deposition has offered false evidence, the lawyer must take reasonable remedial measures, just as at trial.¹⁰

The sections that follow take the rule apart in four pieces:

1. The prospective duty bars a lawyer from offering evidence the lawyer knows to be false.¹¹
2. The retrospective duty requires reasonable remedial measures, including disclosure to the tribunal if necessary, when the lawyer comes to know that material evidence already offered is false.¹²
3. A separate duty requires reasonable remedial measures, again including disclosure if necessary, when the lawyer knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding.¹³
4. A lawyer may refuse to offer evidence the lawyer reasonably believes is false, but that discretion does not extend to the testimony of a defendant in a criminal matter.¹⁴

The three mandatory duties turn on what the lawyer knows, and only the discretion to refuse turns on reasonable belief. The next section takes up the knowledge requirement.