Timing of the Lawyer's Knowledge

Rule 3.3(a)(3) gives a lawyer two commands, and the one that applies depends on when the lawyer learns the truth. The first bars the lawyer from offering evidence the lawyer knows to be false. The second reaches the lawyer whose client, or a witness the lawyer called, or the lawyer personally, has already offered material evidence, and who "comes to know of its falsity." That lawyer "shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."¹ The first command looks ahead to testimony not yet given, and the second looks back at testimony already in the record. Both turn on knowledge as Rule 1.0(f) defines it, because every duty here applies only when the lawyer knows the statement or evidence is false.²

The earlier the lawyer learns of the lie, the gentler the remedy. A lawyer who learns before the testimony that a client or witness plans to lie can often keep the lie out of the record. The tribunal has been told nothing false, and the first tool at hand is persuasion, which leaves the client's confidences where they were. A lawyer who learns afterward faces a record that is already tainted. The remedy must then correct it, and if the client will not cooperate, the lawyer's obligation is mandatory even when the only effective remedy is disclosure of confidential or privileged information to the tribunal.³ Preventing a lie costs everyone less than exposing one.

The two subsections below take the situations in the order a lawyer may meet them. The first covers the lawyer who learns, before it is given, that false testimony is coming. The second covers the lawyer who learns of the falsity after the testimony but while the proceeding remains open. A third timing, in which the lawyer learns of the falsity after the proceeding has ended, belongs to the section on how long the duty lasts.

Knowing Before the Testimony

The first command does its best work when the lawyer learns of the plan before anyone testifies.⁴ Nothing untrue has reached the tribunal, so the lawyer's whole task is prevention, and prevention is the cheapest remedy the rule offers. The duties run from least to most intrusive. The lawyer first tries to dissuade the client. If dissuasion fails, the lawyer may seek leave to withdraw. Whatever the court does with that request, the lawyer must refuse to offer the false evidence. And if the falsehood reaches the tribunal anyway, the second command takes over.

Dissuasion comes first because it is universally agreed that the attorney's first duty, on meeting a proposal for perjured testimony, is to attempt to dissuade the client.⁵ Comment 6 to Rule 3.3 tells the lawyer to seek to persuade the client, and a client who persists will meet a lawyer who must refuse to offer the false evidence.⁶ Professors Rotunda and Dzienkowski put the best form of persuasion this way: the best way to prevent perjury or fraud is to tell the client that if the client testifies falsely, the lawyer will reveal it to the judge.⁷ A client weighing a lie has not counted that cost, and the warning puts it on the scale. In the ordinary case the warning is enough. A strongly stated admonition that perjury is wrongful, and that the rules may require the lawyer to disclose it, usually arrests the client's inclination to stray from the truth, so the lawyer seldom meets a client who truly insists on testifying falsely.⁸ Persuasion also leaves the client's confidences undisturbed, since nothing has been said to the tribunal. A lawyer who goes straight to the court has jumped past the step that usually works.

The facts of Nix v. Whiteside show the sequence at work. Whiteside had stabbed a man named Love, and he first told his lawyer, Robinson, that Love was pulling a pistol from underneath the pillow on the bed. On questioning, he admitted he had not actually seen a gun and was only convinced that Love had one. No pistol was found on the premises, and none of Whiteside's companions who were present had seen one.⁹ Robinson advised him that a gun was unnecessary, because self-defense required only a reasonable belief that the victim had a weapon nearby. When Whiteside insisted that he would testify to seeing "something metallic," Robinson told him that such testimony would be perjury.¹⁰ That response corrected the legal premise that made the lie seem necessary, and it came with a threat to disclose perjury to the court. The persuasion worked, and Whiteside did not testify falsely.¹¹ The constitutional question the case decided belongs to the later section on a criminal defendant's testimony. Here it matters as a picture of what a lawyer does once the knowledge arrives in time.

When dissuasion fails, the lawyer may ask the court for leave to withdraw, the measure discussed above. Withdrawal at trial raises hard questions, including possible mistrial and claims of double jeopardy,¹² so a lawyer who learns of the plan before trial begins avoids at least those complications. If the court refuses leave, the lawyer stays in the case and stays bound by the ban on offering the evidence.

Whether or not the court grants leave, the first sentence of the rule forbids the lawyer to offer evidence the lawyer knows to be false.¹³ Comment 6 puts the consequence directly: if the client persists, the lawyer "must refuse to offer the false evidence."¹⁴ Where only part of the anticipated testimony would be false, the lawyer may let the witness take the stand but "must not elicit or otherwise permit the witness to present the testimony that the lawyer knows to be false."¹⁵ The refusal protects the lawyer as well. An attorney who aids false testimony by questioning a witness when perjured answers can be anticipated risks prosecution for subornation of perjury, as the Iowa statute cited in Nix illustrates.¹⁶

Every step above depends on the lawyer's knowledge being real, and the sequence most often fails to start there. The prohibition attaches to evidence the lawyer knows to be false, and every duty in the rule applies only on knowledge,¹⁷ so a mere suspicion triggers none of these mandatory duties. A lawyer who reasonably believes evidence is false has a separate discretion to refuse it, which the section on that discretion takes up.¹⁸ A client's assurance bears on what the lawyer knows. If the client assures the lawyer of truthful testimony, the lawyer may rely on the assurance and let the client take the stand in all good conscience.¹⁹ Robinson had no such footing. His knowledge rested on Whiteside's own admission that he had not seen a gun, on the absence of any gun on the premises, and on the accounts of the companions who were there.²⁰

Both lawyers faced a story that changed. The plaintiff's lawyer received an innocent explanation and a promise, while Robinson had a client's admission that he had not seen what he proposed to describe. That difference separates a suspicion from knowledge.

If the falsehood is presented anyway, the second command takes over. A client who gave an assurance may betray it or surprise the lawyer with false testimony, and the lawyer who relied on the assurance then may have a duty to take reasonable remedial measures.²¹ That duty is mandatory.²² The next subsection takes up the remedial sequence for testimony the lawyer learns of only after it is given. A criminal defendant presents special problems for both commands, and a later section addresses them.

Learning After the Testimony

The second command governs the lawyer whose knowledge arrives after the false testimony is already in the record. When a lawyer, the lawyer's client, or a witness the lawyer called 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."²⁴ Nothing is left to prevent, because the tribunal has already heard the falsehood, so the lawyer's task is repair. This subsection assumes the proceeding is still open, since only then can the tribunal act on a correction.

The rule's text says only that disclosure comes "if necessary," and the comment fills in the order. The lawyer begins with less intrusive measures and relies on the client or witness to correct the false statement, which is what the comment means by remonstrating. Only if that fails may the lawyer have to do more, including disclosing to the tribunal, and Rule 3.3(c) makes clear that these remedial obligations may include disclosing confidential information protected by Rule 1.6.²⁵ Persuasion leads because the client or witness who gave the testimony is the person best placed to correct it. A correction from that source can put the record right without the lawyer revealing what the client said in confidence. A lawyer who goes to the court first has skipped the step that serves the tribunal, the client, and the confidences at once.

The second step is not optional. The lawyer's obligation to take reasonable remedial measures about evidence the lawyer comes to know is false is mandatory, even when the only effective remedy is disclosure of confidential or privileged information to the tribunal.²⁶ A client's refusal to correct the testimony therefore does not end the lawyer's duty. It carries the lawyer on to the further measures developed above, disclosure among them.

Speed matters as well. The rule's text fixes no deadline, but the lawyer who acts promptly stands in a better position than the one who waits. False testimony left in the record is testimony the tribunal may rely on, and a correction made while the matter is open can still change what the tribunal does. Waste Management of Washington, Inc. v. Kattler shows the value of speed. A client there disobeyed an order to produce a thumb drive and a tablet computer, and the Sixth Circuit reversed a contempt finding against the lawyer, who had been unaware of the misconduct, had not assisted or participated in it, and moved to correct the deception as soon as she learned of it.²⁷ The case concerned a disobeyed production order and not false testimony, but its reasoning carries over. A lawyer who acts at once on learning the truth stands apart from the client's deception, and one who delays risks being drawn into it.

The two scenes differ in what the lawyer holds in hand. Bank records that contradict a sworn answer give the first lawyer knowledge, and knowledge starts the sequence. A remark open to two readings gives the second lawyer only a belief, and the duties of this sentence do not attach to belief, because each of them applies only when the lawyer knows the evidence is false.²⁸ The discretion in the rule's third sentence does not rescue the second lawyer either, because it concerns refusing to offer evidence in the first place, and this testimony has already been given.²⁹

Two situations lie outside this subsection. A lawyer who learns of the falsity only after the proceeding has concluded is addressed in the later section on how long the duty lasts. A criminal defendant's own testimony raises constitutional concerns that receive separate treatment, although the remedial sentence itself carves out no exception for it.³⁰