Candor toward the tribunal (Rule 3.3)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

Proposed Rule 3.3, Candor Toward the Tribunal, is one of the few proposed rules to discard the comparable current iteration of the rule, Rule 5-200, and adopt the language of Model Rule 3.3. Comment 1 clarifies that "tribunal" includes ancillary proceedings without a court officer such as depositions.

Existing Rule 5-200(A) and (B) nearly duplicate Business and Professions Code Section 6068(d), adopted in 1872. Paragraph (A) cautions a lawyer to "employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with the truth," with no further guidance. Paragraph (B) prohibits a lawyer from "seeking to mislead the judge ... by an artifice," but does not clarify what a prohibited "artifice" is. Paragraph (C) precludes misquoting a book, statute or decision; paragraph (D) prohibits using authority overruled or repealed; and paragraph (E) precludes asserting personal knowledge of facts excepts when testifying as a witness.

Rule 3.3 more precisely identifies specific prohibited conduct than the existing rule. Rule 3.3(a)(1) prohibits a knowingly false statement of fact or law, a more specific prohibition than "means [in]consistent with the truth" or "artifice."

Subsection (a)(2) requires a lawyer disclose known authority within the controlling jurisdiction of the matter directly adverse to the client's position. This is a broader requirement than the narrowly defined duties in current Rule 5-200(C) and (D). But, Comment 2 incorporates most of the language in existing Rule 5-200(D), prohibiting the use of overruled or repealed authority, to clarify that while the language of the existing rule has changed, its substance still applies. Comment 3 clarifies that "legal authority in the controlling jurisdiction," may encompass authority outside of the geographical boundaries of the court.

Subsection (a)(3) prohibits offering false evidence. It provides guidance, stating the attorney may make disclosures to the court and refuse to offer evidence the attorney knows is false.

Rule 3.3(b) mandates an attorney take reasonable remedial measures if aware of criminal or fraudulent conduct related to the proceeding. Comment 4 suggests measures an attorney can take to prevent fraud on the court. An attorney can try to persuade a client not to offer false evidence and can refuse to offer the evidence. A criminal defendant intent on testifying falsely should be dissuaded from doing so, and the attorney can seek to withdraw. If these measures fail, the attorney may offer the testimony in narrative form.

However, under 3.3(a)(3) and 3.3(b), the attorney must continue to maintain the duty of confidentiality set forth in Business and Professions Code Section 6068(e). Comments 5 and 8 reinforce the duty of confidentiality. Protection of client confidentiality over obligations to the court is unique to California. Comment 5 suggests remedial measures to address false evidence or other fraud on the court. It advises the lawyer should explain attorney ethical responsibilities to the client; explain the reasons the attorney may seek to withdraw; and remonstrate further with the client to take corrective action to avoid the attorney's need to withdraw. If the client is an organization, the Comment suggests reporting up the chain of command consistent with Rule 1.13. Demonstrating how fraught these issues are, Comment 8 advises the duty of candor does not mandate withdrawal, although a complete breakdown in the attorney-client relationship over disagreements involving deceit on the court might.

Rule 3.3(c) limits the duration of the lawyer's duties to the end of the proceeding or the representation. Comment 6 clarifies the attorney is not obligated to remediate fraud on the court if it is discovered after the attorney is no longer involved in the matter.

Rule 3.3(d) mandates an attorney appearing ex parte without opposition disclose all known facts, even those facts adverse to the client's position.

A duty of candor to the court has always been in tension with the duty to protect client confidences - it is difficult to craft a rule that accomplishes both. The proposed rule, modeled on rules from jurisdictions that place candor to the court over client confidences, is an imperfect solution to a knotty problem. Only time will tell if Rule 3.3 provides further guidance, or merely raises more issues.

Rule 3.3 Candor Toward The Tribunal*

(Proposed rule adopted by the board March 9, 2017)

(a) A lawyer shall not:

(1) knowingly make a false statement of fact or law to a tribunal* or fail to correct a false statement of material fact or law previously made to the tribunal* by the lawyer;

(2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction known* to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal* the language of a book, statute, decision or other authority; or

(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know* of its falsity, the lawyer shall take reasonable* remedial measures, including, if necessary, disclosure to the tribunal,* unless disclosure is prohibited by Business and Professions Code § 6068(e) and rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes* is false.

(b) A lawyer who represents a client in a proceeding before a tribunal* and who knows* that a person* intends to engage, is engaging or has engaged in criminal or fraudulent* conduct related to the proceeding shall take reasonable* remedial measures to the extent permitted by Business and Professions Code § 6068(e) and rule 1.6.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding or the representation, whichever comes first.

(d) In an ex parte proceeding where notice to the opposing party in the proceeding is not required or given and the opposing party is not present, a lawyer shall 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 to the position of the client.

Comment

[1] This rule governs the conduct of a lawyer in proceedings of a tribunal,* including ancillary proceedings such as a deposition conducted pursuant to a tribunal's authority. See rule 1.0.1(m) for the definition of "tribunal."

[2] The prohibition in paragraph (a)(1) against making false statements of law or failing to correct a material misstatement of law includes citing as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional, or failing to correct such a citation previously made to the tribunal* by the lawyer.

Legal Argument

[3] Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction in which the tribunal* sits, such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court.

[4] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. If a lawyer knows* that a client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered and, if unsuccessful, must refuse to offer the false evidence. If a criminal defendant insists on testifying, and the lawyer knows* that the testimony will be false, the lawyer may offer the testimony in a narrative form if the lawyer made reasonable* efforts to dissuade the client from the unlawful course of conduct and the lawyer has sought permission from the court to withdraw as required by rule 1.16. See, e.g., People v. Johnson (1998) 62 Cal.App.4th 608 [72 Cal.Rptr.2d 805]; People v. Jennings (1999) 70 Cal.App.4th 899 [83 Cal.Rptr.2d 33]. The obligations of a lawyer under these rules and the State Bar Act are subordinate to applicable constitutional provisions.

Remedial Measures

[5] Reasonable* remedial measures under paragraphs (a)(3) and (b) refer to measures that are available under these rules and the State Bar Act, and which a reasonable* lawyer would consider appropriate under the circumstances to comply with the lawyer's duty of candor to the tribunal.* See, e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), and 8.4; Business and Professions Code §§ 6068(d) and 6128. Remedial measures also include explaining to the client the lawyer's obligations under this rule and, where applicable, the reasons for the lawyer's decision to seek permission from the tribunal* to withdraw, and remonstrating further with the client to take corrective action that would eliminate the need for the lawyer to withdraw. If the client is an organization, the lawyer should also consider the provisions of rule 1.13. Remedial measures do not include disclosure of client confidential information, which the lawyer is required to protect under Business and Professions Code § 6068(e) and rule 1.6.

Duration of Obligation

[6] A proceeding has concluded within the meaning of this rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed. This rule does not apply when a lawyer comes to know* of a violation of paragraph (b) after the lawyer's representation has concluded. However, there may be obligations that go beyond this rule. See, e.g., rule 3.8(g) and (h).

[7] Paragraph (d) does not apply to ex parte communications that are not otherwise prohibited by law or the tribunal.

Withdrawal

[8] A lawyer's compliance with the duty of candor imposed by this rule does not require that the lawyer withdraw from the representation. The lawyer may, however, be required by rule 1.16 to seek permission of the tribunal* to withdraw if the lawyer's compliance with this rule results in a deterioration of the lawyer-client relationship such that the lawyer can no longer competently and diligently represent the client, or where continued employment will result in a violation of these rules. A lawyer must comply with Business and Professions Code § 6068(e) and rule 1.6 with respect to a request to withdraw that is premised on a client's misconduct.

[9] In addition to this rule, lawyers remain bound by Business and Professions Code §§ 6068(d) and 6106.