Reasonable Remedial Measures

Reasonable Remedial Measures

Once false evidence has reached the tribunal, the ban on offering it has come too late, and the second sentence of Rule 3.3(a)(3) takes over. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know it is false, the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”¹ Call this the retrospective duty. The ban governs what goes into the record; the retrospective duty governs what the lawyer must do about a falsehood already there, whether a witness deceived the lawyer or a client broke a promise to testify truthfully. “Shall” makes the duty mandatory. Disclosure to the tribunal is one remedial measure among several, and the words “if necessary” mark it as the one to reach for last.

The duty protects the integrity of the tribunal’s decision. In Nix v. Whiteside, the Supreme Court traced a lawyer’s special duty to prevent and disclose frauds upon the court to the recognition that perjury is as much a crime as tampering with witnesses or jurors and undermines the administration of justice.² The lawyer’s obligations to the client pull the other way, and the rule reconciles the two by sequence. The comment to Rule 3.3 tells the lawyer to begin with the least intrusive measures, relying on the client or witness to correct the false statement, and says that if those fail the lawyer may have to do more, up to disclosure to the tribunal.³ Rule 3.3(c) makes clear that the remedial obligations may include disclosing confidential information protected by Rule 1.6.⁴

The four subsections follow the order in which a lawyer meets the problem. The first states what starts the duty, and the other three take up persuasion of the client, withdrawal from the representation, and disclosure to the tribunal. Two errors are common: treating disclosure as the opening move, and treating silence as acceptable once the lawyer knows the evidence is false. The rule rejects both.

When the Duty Is Triggered

The retrospective duty begins only when three conditions coincide: the evidence is material, one of three named sources offered it, and the lawyer comes to know of its falsity.⁵ If any one is missing, the lawyer stands outside the sentence, however troubling the evidence. What the lawyer must then do is the subject of the next three subsections; this one asks only when the duty starts.

Materiality comes first. The retrospective duties apply only to material false evidence, a qualifier that the rule’s ban on offering known false evidence does not carry.⁶ The limit fits what the duty can demand, since remedial measures start with a confrontation between lawyer and client and can end with disclosure of confidential information. The duty is therefore reserved for evidence that could affect how the tribunal decides.

Materiality is measured by the issue the evidence bears on, not by how plainly false the statement is. Had the same witness misstated whether she attended the meeting at which the terms were agreed, the falsehood would go to the center of the dispute and the first condition would be met.

The second condition fixes whose evidence counts. The rule names three sources: the lawyer, the lawyer’s client, and a witness the lawyer called.⁷ More common than a false statement by the lawyer is a false statement by a witness the lawyer called, and paragraph (a)(3) handles it.⁸ The identity of the speaker therefore matters less than whether the lawyer put the evidence forward. An exam stem may make someone other than the client the liar in the hope that the student will conclude the rule does not apply, but a witness the lawyer called triggers the same duty as the client does. The list does not reach a witness called by the other side. Wrongdoing by other people connected with the proceeding falls under Rule 3.3(b), taken up in the later section on fraud on the tribunal.⁹

The third condition is knowledge, and it follows the offering. The sentence addresses a lawyer who “comes to know” that evidence already offered is false, so the trigger is usually new information, such as a document, an admission by the client, or a witness’s own retraction. Knowledge keeps the meaning developed earlier: actual, subjective knowledge, which may be inferred from the circumstances.¹⁰ The standard is not what a reasonable lawyer should have known, but a lawyer cannot ignore an obvious falsehood.¹¹ A lawyer who is merely uneasy about testimony already given has not come to know anything, and the duty does not arise. A lawyer who knew the evidence was false before it was offered has already run into the ban, and the later section on timing addresses that case.

The setting of the testimony does not matter. A comment to the rule applies it when the lawyer represents a client in an ancillary proceeding conducted under the tribunal’s adjudicative authority, such as a deposition, and gives the example of a client who testifies falsely at a deposition: the lawyer who comes to know of the falsity must take reasonable remedial measures.¹² That comment cites the duty as subdivision (a)(4), as does the opinion in Nix; the current rule places it in (a)(3). What matters is that the proceeding is conducted under the tribunal’s adjudicative authority, not that a judge is in the room.

Had the lawyer only sensed during the deposition that the client was holding something back, with no photograph or admission in hand, the third condition would be missing, because a suspicion is not knowledge.

Remonstrating With the Client

Rule 3.3(a)(3) demands “reasonable remedial measures” but lists no steps.¹⁴ The comment supplies the order: the lawyer begins with less intrusive measures and relies on the client or witness to correct the false statement.¹⁵ To remonstrate is to protest that the evidence is false and to urge the person who can fix it to do so. That person is usually the client, but it may be a witness the lawyer called. Remonstration is therefore the opening move, and each later measure comes into play only if it fails.

Persuasion goes first because it costs least. A client who corrects the testimony gives the tribunal an accurate record without any confidential information leaving the lawyer’s hands, whereas withdrawal ends the representation and disclosure reveals what the lawyer knows. A lawyer who jumps straight to disclosure forgoes the chance to repair the record gently, and a lawyer who stops after the client refuses leaves the falsehood in place.

Nix v. Whiteside shows persuasion at work. The Supreme Court noted that it is universally agreed that a lawyer’s first duty, on confronting a proposal for perjured testimony, is to attempt to dissuade the client.¹⁶ Whiteside’s lawyer, Robinson, did that and more. He told Whiteside that the proposed testimony would be perjury and that it was not necessary to prove a gun was available, only that Whiteside reasonably believed he was in danger. When Whiteside insisted he would say he saw “something metallic,” Robinson answered that he could not allow it, that it would be his duty to advise the court, and that he would seek to withdraw if Whiteside persisted.¹⁷ The persuasion succeeded, and the Court held that this forceful and successful persuasion, backed by a threat to disclose the perjury, did not violate Whiteside’s Sixth Amendment right to effective assistance of counsel.¹⁸ That is the ordinary course of events. A strongly stated admonition that perjury is wrongful, and that the ethical rules may require the lawyer to tell the tribunal, usually suffices to turn a client back toward the truth, and a lawyer seldom faces a client who truly insists on testifying in a way the lawyer knows to be false.¹⁹

Remonstration serves in both timing situations. The 1983 comment quoted in Nix tells a lawyer who ascertains that material evidence is false to seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed.²⁰ A lawyer who has the client’s assurance of truthful testimony may rely on it and let the client take the stand in good conscience. If the client then betrays the assurance or surprises the lawyer with false testimony, the lawyer may have a duty to take reasonable remedial measures.²¹ Reliance is legitimate only while the assurance holds. The surprise falsehood puts the lawyer under the retrospective duty, and the first move is again to remonstrate, this time to obtain a correction.

Two mistakes mirror each other, and the next pair of lawyers makes one each.

Persuasion counts only when it works. The rule demands remedial measures that address the falsity, so a client’s refusal sends the lawyer on to the next measures, withdrawal and, if necessary, disclosure.²²

Withdrawal From the Representation

When persuasion has failed, withdrawal is the next measure. Rule 3.3(a)(3) does not name it, for the text speaks only of “reasonable remedial measures, including, if necessary, disclosure to the tribunal.”²⁴ But in reviewing the professional standards in Nix, the Supreme Court observed that the Model Rules and their commentary expressly permit withdrawal as an appropriate response when a client threatens to commit perjury, citing Rule 1.16(a)(1) and the comment to Rule 1.6.²⁵ Withdrawal thus sits between remonstration, which asks the client to correct the problem, and disclosure, which reports it to the court.

The profession’s position, as the Court described the American Bar Association’s brief, is that under no circumstance may a lawyer either advocate or passively tolerate a client’s giving false testimony.²⁶ A lawyer who stays on the case after the client has insisted on perjury risks doing one or the other. Robinson put the point in just these terms: as officers of the court, he said, “we would be suborning perjury if we allowed him to do it,” and he added that he would seek to withdraw if Whiteside insisted on committing perjury.²⁷ The Court asked whether that conduct fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment²⁸ and held that persuading a defendant not to testify falsely, by threatening to disclose the perjury, did not violate his right to effective assistance.²⁹ The defendant lost nothing the law protects, because the right to testify does not extend to testifying falsely.³⁰

A lawyer should not count on withdrawal as a clean exit, however. The Court noted that withdrawal of counsel when the problem arises at trial gives rise to many difficult questions, including possible mistrial and claims of double jeopardy.³¹

Both lawyers faced the same conduct and took the same step. What differed was how easily the proceeding could absorb the departure.

Even a granted motion does not make the remedial duty disappear, because withdrawal does nothing to false evidence already in the record. If the testimony has been given, the tribunal can still be deciding the case on a falsehood after the lawyer has left, and the duty the rule imposes is to take measures that address the falsity, including disclosure to the tribunal if necessary.³² Withdrawal is also not disclosure. It takes the lawyer out of the case without correcting the record, which is why disclosure appears as a separate measure.

Disclosure to the Tribunal

Rule 3.3(a)(3) ends its remedial sequence with a phrase that places disclosure last: a lawyer who comes to know that material evidence already offered is false “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”³⁴ The words “if necessary” put disclosure after remonstration and the attempt to withdraw have failed to repair the record. The comment describes the same progression: the lawyer begins with less intrusive steps that rely on the client or witness to correct the false statement, and if those fail, the lawyer may have to do more, including disclosing to the tribunal.³⁵ Two features of the language work together. “Shall” makes the duty mandatory, so a lawyer cannot stop climbing once the gentler measures fail, while “if necessary” governs the choice of step, so a lawyer cannot begin at the top.

Disclosure comes last because it is the only measure that addresses the tribunal directly and the only one that gives up confidential information. Persuasion and withdrawal cannot help when the client refuses and the false testimony stays in the record. At that point the tribunal is deciding on a falsehood, and the lawyer is the one person positioned to say so. The same words that put disclosure last also limit it: it is required only if necessary, so a lawyer whose client has already corrected the testimony has no remaining need to disclose.

The duty reaches information that would otherwise be protected. Rule 3.3(c) makes clear that the remedial obligations may include disclosing confidential information protected by Rule 1.6.³⁶ That override matters because Rule 1.6 is broad: it covers all information relating to the representation, whatever its source, and not only what the client told the lawyer in confidence.³⁷ Even so, the obligation to take reasonable remedial measures is mandatory when the only effective remedy is disclosure of confidential or privileged information to the tribunal.³⁸ The Supreme Court gave the underlying reason in Nix: an attorney’s ethical duty to advance the client’s interests is limited by an equally solemn duty to comply with the law and the standards of professional conduct, and that limit specifically ensures that the client may not use false evidence.³⁹ A later section returns to how Rule 3.3(c) displaces Rule 1.6.

The Court also surveyed the standards on disclosure itself. Both the Model Code and the Model Rules adopt an exception from the attorney-client privilege for perjury a client intends to commit or has committed, and they do not merely authorize disclosure by counsel but require it.⁴⁰ The Court cited the requirement as Rule 3.3(a)(4), the numbering of the 1983 text, and the current rule places the same duty in paragraph (a)(3).⁴¹

The duty does not depend on who spoke the falsehood. It applies to material evidence offered by the lawyer, the lawyer’s client, or a witness the lawyer called.⁴² The early steps differ in whom the lawyer persuades, since the lawyer reasons with the client or directly with the witness, whichever can correct the testimony, but the last step is the same for either source. The same “if necessary” language appears in Rule 3.3(b) for criminal or fraudulent conduct by any person related to the proceeding, so the last-resort logic carries over to wrongdoing beyond testimony, which a later section develops.⁴³

The practical test is whether anything short of disclosure has actually corrected the false evidence.

Two instincts lose points here. One is to treat disclosure as the lawyer’s first reaction on learning of falsity, which skips the less intrusive measures the comment tells the lawyer to try first.⁴⁴ The other is to treat confidentiality as a reason to stay silent after every gentler step has failed. The two scenes differ only in whether the false evidence was corrected, and that fact decides whether disclosure was necessary.

The mandatory override remains contested. It has been one of the more controversial features of the Model Rules, because Rule 3.3 reverses, at least in part, the expectations of the earlier Model Code, under which client confidentiality ranked above the duty to correct client untruths, and several states hesitate or decline outright to require disclosure of confidential information in criminal cases.⁴⁵ The case for restraint starts from the accused’s constitutional rights, including the right to take the stand, the privilege against self-incrimination, and the right of self-representation. A defense lawyer too concerned about candor to the tribunal might interfere with those rights, and that risk was the basis of the defendant’s argument in Nix.⁴⁶ The case for disclosure starts from the court: perjury is a crime that undermines the administration of justice, and under no circumstance may a lawyer either advocate or passively tolerate a client’s false testimony.⁴⁷ The Model Rule as written resolves the question in favor of disclosure when necessary. Its remedial sentence contains no exception for criminal cases, and the carve-out for a criminal defendant’s testimony concerns only the lawyer’s discretion to refuse evidence the lawyer reasonably believes is false.⁴⁸ An answer keyed to the Model Rules applies the rule as written, and an answer set in a state that has declined to require disclosure in criminal cases follows that state’s choice.