Also known as: remedial measure · corrective measures
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An ethical duty requiring a lawyer who knows that material evidence offered by the lawyer, the client, or a witness is false to take reasonable steps to correct the record. The duty extends to fraudulent conduct related to the proceeding and continues through the conclusion of the matter even when disclosure would otherwise be protected by confidentiality rules.
An ethical duty requiring a lawyer who knows that material evidence offered by the lawyer, the client, or a witness is false to take reasonable steps to correct the record. The duty extends to fraudulent conduct related to the proceeding and continues through the conclusion of the matter even when disclosure would otherwise be protected by confidentiality rules.
Valerie filed a summary judgment motion containing factual assertions contradicted by internal police reports. Three days later her supervisor Leslie learned of the inaccuracies. Leslie delayed directing a corrective filing for eleven days while opposing counsel moved for sanctions. The delay allowed sanctions to be sought before any correction occurred.
A post-accident repair or other change that would have made the earlier harm less likely to occur. Such measures are inadmissible to prove negligence or culpable conduct but may be admitted when offered for another purpose such as proving ownership, control, or the feasibility of precautionary measures if those issues are genuinely disputed.
A patient fell from a hospital bed lacking alarms and fractured a hip. Within two weeks the hospital installed bed-rail alarms on every bed and adopted a written hourly-check policy. The patient offered the post-fall changes to prove the hospital's control over the beds and the feasibility of alarms. The court admitted the evidence for those limited purposes after a limiting instruction.
A post-accident repair or other change that would have made the earlier harm less likely to occur. Such measures are inadmissible to prove negligence or culpable conduct but may be admitted when offered for another purpose such as proving ownership, control, or the feasibility of precautionary measures if those issues are genuinely disputed.
Each sense below has its own examples, sources, and questions.
A criminal defendant told defense counsel he intended to testify falsely about his whereabouts. Counsel first attempted to dissuade the client from testifying falsely. When dissuasion failed counsel refused to present the testimony and informed the court of the perjury. The court permitted counsel to withdraw from further participation in the false testimony.
An associate prepared title affidavits that omitted known boundary disputes. The supervising partner learned of the omissions several days before closing. The partner instructed the associate to be more careful on future matters but took no steps to correct the filed affidavits or notify the buyer. The closing occurred without disclosure of the disputes.
A defendant was acquitted of criminal charges arising from a transaction. The government later pursued civil forfeiture of property involved in the same transaction. The acquittal did not bar the forfeiture action because the later proceeding imposed only civil remedial measures rather than additional criminal punishment.
Federal agents seized documents during an unlawful search of a third party's briefcase. The government sought to use the documents against a different defendant in a later prosecution. The court held that the exclusionary rule did not apply because the defendant lacked any legitimate expectation of privacy in the third party's property.
A lawyer must act when the lawyer knows that material evidence offered by the lawyer, the client, or a witness is false. The duty also arises when the lawyer knows a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding. Reasonable remedial measures include disclosure to the tribunal if necessary.
Yes. The duties under Rule 3.3 continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
No. An acquittal in a criminal case does not bar a subsequent civil forfeiture action because the forfeiture proceeding imposes only civil remedial measures rather than criminal punishment.
Evidence of subsequent remedial measures is admissible when offered for a purpose other than proving negligence, culpable conduct, a defect, or a need for a warning. Permitted purposes include proving ownership, control, or the feasibility of precautionary measures if those issues are disputed.
…warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, . . . corrective measures . . . salvage an interrogation opportunity"). [^maj-3]: See, e. g. , United States v. Orso , 266 F. 3d 1030, 1032-1033 (CA9 2001) (en banc); Pope v. Zenon , 69 F. 3d 1018, 1023-1024…