Fraud on the Tribunal

Rule 3.3(b) reaches wrongdoing that never passes through the evidence. It directs a lawyer who represents a client in an adjudicative proceeding, and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal."¹ Florida's version states the duty in the same words.² Paragraph (a)(3), the subject of the earlier sections, is built around false evidence offered by the lawyer, the client, or a witness the lawyer called. Paragraph (b) is built around wrongdoing, and it covers any crime or fraud aimed at the proceeding, whether or not any evidence carries it.

Why the paragraph sweeps so widely

A proceeding can be corrupted without anyone touching an exhibit or a witness's answer. Someone can bribe a juror, frighten a witness into silence, coach a witness to lie, or lie on a juror questionnaire to win a seat on the panel. In each case the tribunal decides on a foundation that looks sound and is not, and it usually cannot find the defect on its own. The lawyer stands differently. The client may confide the plan, the lawyer may see the proof, and the lawyer is often the only person who can stop the scheme or alert the court in time. The rule therefore ties the duty to the lawyer's knowledge and extends it to the conduct of any person, the client included.

Client perjury is one instance of this conduct, and Nix v. Whiteside explains why the rule treats it alongside the others. The Court said that the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. It added that no system of justice worthy of the name can tolerate a lesser standard.³ Whiteside's planned testimony is the "intends" situation in miniature: a criminal act aimed at the case, known to the lawyer before anyone spoke a false word. Perjury is itself criminal conduct related to the proceeding, so a lawyer who knows a client will lie under oath falls within both paragraph (a)(3) and paragraph (b).

The five elements

Paragraph (b) has five elements, and any one of them can decide a problem.

First, the lawyer must represent a client in an adjudicative proceeding. The duty belongs to the advocate in the case, and it does not stop at the courtroom door. The comment to Florida's version says the rule also applies in an ancillary proceeding conducted under the tribunal's adjudicative authority, such as a deposition.⁴ A lawyer with no role in the proceeding, who merely hears of a plot against it, stands outside this paragraph.

Second, the lawyer must know. The word keeps the meaning developed earlier in this chapter: actual knowledge, which may be inferred from the circumstances but which a rumor, a suspicion, or an uneasy feeling does not supply. The standard is steep for a reason specific to this paragraph. The required measures can end in withdrawal from the case or in disclosure of the client's confidences, so the rule triggers them only on a firm basis, and a lawyer who acted on a hunch would be reporting people on a guess. A lawyer who hears a courthouse rumor that someone may have approached a juror owes nothing under paragraph (b). A lawyer who hears the client say he will pay a juror, or who sees proof that someone did, owes the full duty.

Third, the wrongdoer is "a person," and the text does not limit that term to the client.⁵ Paragraph (a)(3) sorts its cases by who offered the evidence, so the source of the evidence matters there. Under paragraph (b) the identity of the actor does not matter. A client's relative who plans to pay a juror, a witness who intends to be coached into a false story, and a juror who concealed a bias are all persons, and a lawyer who knows of any of them has the duty. An exam stem that makes someone other than the client the wrongdoer, hoping the student will conclude the rule is not engaged, does not change the analysis.

Fourth, the conduct must be criminal or fraudulent. Bribing a juror, threatening a witness, and committing perjury are crimes, and a scheme to deceive the tribunal, such as a lie told during jury selection to reach the panel, is fraud. Conduct that is merely aggressive, unattractive, or unfair, but neither criminal nor fraudulent, falls outside the paragraph however much the lawyer dislikes it.

Fifth, the conduct must be related to the proceeding. This element keeps the rule from swallowing the lawyer's other obligations. Clients commit crimes and frauds in many parts of their lives, and a rule that required the lawyer to report all of it would end any client's willingness to speak candidly to counsel. Tying the duty to the proceeding confines it to wrongdoing that threatens the integrity of the process the lawyer serves. Everything else stays under the confidentiality rule, which protects all information relating to the representation, whatever its source, and under the other rules of professional conduct.⁶ On an exam, the limit usually appears as a question: why is one client crime reportable and another not, when the lawyer knows of both with certainty?

Change one fact in the same suit and the answer reverses. Suppose the client tells the lawyer that he will pay a juror for a favorable verdict. The crime is of comparable seriousness, but it is aimed at the process the lawyer is serving, so the paragraph applies. The lawyer must warn the client, seek to withdraw if the warning fails, and tell the court if nothing else will keep the verdict from resting on a bribe. Both scenes involve the same client, the same certainty, and the same degree of criminality. The only fact that places one within paragraph (b) is whether the wrong is directed at the tribunal.

The three tenses of the duty

The duty does not wait for a particular moment in the misconduct. The rule's verbs run through all three tenses, so it covers a person who "intends to engage, is engaging or has engaged" in the conduct.⁷ Each tense calls for a different repair. Before the misconduct, the task is prevention, as when a client announces a plan to bribe a juror and a firm warning can end it. While the misconduct is under way, the task is to stop it. After it has happened, the task is to correct its effect on the proceeding, because a verdict returned by a paid juror still rests on the payment until the court deals with it. The earlier the lawyer acts, the cheaper the remedy, which is why the rule does not wait for the harm to be complete. How long the duty lasts once the conduct is over is the subject of a later section.

The response: the same ladder

Paragraph (b) prescribes the same response as paragraph (a)(3), reasonable remedial measures including disclosure to the tribunal if necessary, so the ladder from the earlier sections carries over.⁸ The lawyer starts with the least intrusive step that can work, seeks to withdraw where withdrawal helps, and discloses only when the other measures cannot repair the process. What counts as the least intrusive step depends on who the wrongdoer is. When the client plans a bribe, persuasion is aimed at the client, and a strongly stated warning often suffices. When the wrongdoer is someone the lawyer cannot persuade, or someone only the court can act upon, disclosure becomes the measure that works. Because disclosure may be required, the duty can force the lawyer to reveal information that Rule 1.6 would otherwise protect, a point a later section develops.⁹

The lawyer's duty in that hypothetical arises although no one has offered false evidence. A student who looks for a lie by a witness or the client and stops when none appears has applied paragraph (a)(3) and overlooked paragraph (b).