Truthfulness Versus Candor

Candor in Ex Parte Proceedings

Truthfulness Versus Candor

Rule 3.3(a) begins with the words “A lawyer shall not knowingly,” and its first prohibition bars a lawyer from making “a false statement of fact or law to a tribunal” or failing “to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”¹ That is a rule against lying. It does not require a lawyer to say everything, and the gap between those two duties is the subject of this unit.

Two near-synonyms mark the gap. A lawyer is truthful when the lawyer believes everything said to be true, and candid when the lawyer discloses all of the relevant information. The two come apart because a speaker can say only true things and still leave out what matters. To lie is to make a false statement; to withhold relevant information is to be reticent.² The rules punish the lie. In civil litigation they do not require a lawyer to be forthcoming beyond what discovery properly sought, so long as the result is not a frivolous claim or defense or a fraud.³ Truthfulness is the baseline, and candor is the exception.

The advocate’s role explains why the line falls there. A lawyer acting as an advocate must present the client’s case with persuasive force, and that duty is qualified by the duty of candor to the tribunal.⁴ The qualification is narrow. The lawyer need not offer a disinterested exposition of the law or vouch for the evidence, and the lawyer is not held to have guaranteed the accuracy of factual allegations in pleadings, which are understood as presentations of the client’s assertions. What the lawyer must not do is let the tribunal be misled by false statements of law or fact, or by evidence the lawyer knows to be false.⁵ The limits on that freedom are firm: the lawyer must verify that factual allegations have some evidentiary support and are not frivolous, may not knowingly present false evidence, and must take remedial action on learning that false evidence has been presented. Underneath all of this lies a practical point. Because truth and rightfulness are so often disputed in litigation, the lawyer should not be put in the position of presuming to judge his own client.⁶

Students often call that silence a breach of candor because the withheld fact is damaging. Harm to the client is not the test. Ask instead whether a rule requires disclosure in this setting, and whether the silence itself leaves the tribunal with a false impression. Three exceptions answer yes to one of those questions.

The first exception applies when silence does the work of a lie. The ABA’s comment to Rule 3.3 recognizes that “There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation,” though it never says which circumstances those are.⁷ Virzi v. Grand Trunk Warehouse and Cold Storage Co. supplies one. A plaintiff’s lawyer was negotiating a settlement that required court approval when the client died, and the lawyer told neither opposing counsel nor the court. The silence left a false impression about the action itself, though the lawyer never uttered a false word. What separates Virzi from the trial hypothetical is whether the silence distorts what the lawyer is presenting. The defense lawyer’s omission leaves every statement the lawyer made true. The plaintiff’s lawyer’s omission makes the request for approval misleading in itself. Outside the courtroom, Rule 4.1 follows the same pattern. A lawyer may not knowingly make a false statement of material fact or law to a third person, and must disclose a material fact only when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless Rule 1.6 prohibits it.⁸

The second exception concerns law rather than fact. Under Rule 3.3(a)(2), a lawyer must acknowledge adverse legal authority when opposing counsel has failed to do so.⁹ The duty ends with acknowledgment. The lawyer need not surrender to the authority if a reasonable basis for escape remains, and having disclosed it, the lawyer as a zealous advocate must offer every reasonable argument for why it should be distinguished, limited, overruled, or overridden.¹⁰

The third exception reaches facts, and it is the one this chapter develops. In an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, “whether or not the facts are adverse.”¹¹ This is Rule 3.3(d), and it covers exactly the adverse facts that the baseline leaves to the opposing party to find.¹² Why the ex parte setting justifies that departure depends on what an ex parte proceeding is, which the next section takes up.