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Alabama Rule 3.3 Candor Toward the Tribunal (a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; or (3) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (d) In an ex parte proceeding other than a grand jury proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. COMMENT
An advocate is
responsible for pleadings and other documents prepared for litigation, but is
usually not required to have personal knowledge of matters asserted therein, for
litigation documents ordinarily present assertions by the client, or by someone
on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1.
However, an assertion purporting to be on the lawyer's own knowledge, as in an
affidavit by the lawyer or in a statement in open court, may properly be made
only when the lawyer knows the assertion is true or believes it to be true on
the basis of a reasonably diligent inquiry. There are circumstances where
failure to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a
client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule.
See also the Comment to Rule 8.4(b).
Legal argument
based on a knowingly false representation of law constitutes dishonesty toward
the tribunal. A lawyer is not required to make a disinterested exposition of the
law, but must recognize the existence of pertinent legal authorities. When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes. When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
Except in the
defense of a criminal accused, the rule generally recognized is that, if
necessary to rectify the situation, an advocate must disclose the existence of
the client's deception to the court or to the other party. Such a disclosure can
result in grave consequences to the client, including not only a sense of
betrayal but also loss of the case and perhaps a prosecution for perjury. But
the alternative is that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process which the adversary system is designed to
implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that
the lawyer will act upon the duty to disclose the existence of false evidence,
the client can simply reject the lawyer's advice to reveal the false evidence
and insist that the lawyer keep silent. Thus the client could in effect coerce
the lawyer into being a party to fraud on the court. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the lawyer should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the lawyer's duty when that persuasion fails. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available. The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious. The lawyer's effort to rectify the situation can increase the likelihood of the client's being convicted as well as open the possibility of a prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court. Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the lawyer's questioning. This compromises both contending principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to counsel. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.
The other
resolution of the dilemma is that the lawyer must reveal the client's perjury if
necessary to rectify the situation. A criminal accused has a right to the
assistance of an advocate, a right to testify and a right of confidential
communication with counsel. However, an accused should not have a right to
assistance of counsel in committing perjury. Furthermore, an advocate has an
obligation, not only in professional ethics but under the law as well, to avoid
implication in the commission of perjury or other falsification of evidence. See
Rule 1.2(d).
If perjured
testimony or false evidence has been offered, the advocate's proper course
ordinarily is to remonstrate with the client confidentially. If that fails, the
advocate should seek to withdraw if that will remedy the situation. If
withdrawal will not remedy the situation or is impossible, the advocate should
make disclosure to the court. It is for the court then to determine what should
be done--making a statement about the matter to the trier of fact, ordering a
mistrial, or perhaps nothing. If the false testimony was that of the client, the
client may controvert the lawyer's version of their communication when the
lawyer discloses the situation to the court. If there is an issue whether the
client has committed perjury, the lawyer cannot represent the client in
resolution of the issue, and a mistrial may be unavoidable. An unscrupulous
client might in this way attempt to produce a series of mistrials and thus
escape prosecution. However, a second such encounter could be construed as a
deliberate abuse of the right to counsel and as such a waiver of the right to
further representation.
The general
rule--that an advocate must disclose the existence of perjury with respect to a
material fact, even that of a client--applies to defense counsel in criminal
cases, as well as in other instances. However, the definition of the lawyer's
ethical duty in such a situation may be qualified by constitutional provisions
for due process and the right to counsel in criminal cases. In some
jurisdictions these provisions have been construed to require that counsel
present an accused as a witness if the accused wishes to testify, even if
counsel knows the testimony will be false. The obligation of the advocate under
these Rules is subordinate to such a constitutional requirement.
A practical
time limit on the obligation to rectify the presentation of false evidence has
to be established. The conclusion of the proceeding is a reasonably definite
point for the termination of the obligation.
Generally
speaking, a lawyer has authority to refuse to offer testimony or other proof
that the lawyer believes is untrustworthy. Offering such proof may reflect
adversely on the lawyer's ability to discriminate in the quality of evidence and
thus impair the lawyer's effectiveness as an advocate. In criminal cases,
however, a lawyer may, in some jurisdictions, be denied this authority by
constitutional requirements governing the right to counsel.
Ordinarily, an
advocate has the limited responsibility of presenting one side of the matters
that a tribunal should consider in reaching a decision; the conflicting position
is expected to be presented by the opposing party. However, in an ex parte
proceeding, such as an application for a temporary restraining order, there is
no balance of presentation by opposing advocates. The object of an ex parte
proceeding is nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just consideration. The
lawyer for the represented party has the correlative duty to make disclosures of
material facts known to the lawyer and that the lawyer reasonably believes are
necessary to an informed decision. Since a grand jury proceeding is a
preliminary step in the institution of a criminal charge, the prosecutor is not
required to present all "material" facts. Otherwise, the grand jury proceeding
could become unduly burdened with numerous witnesses, every piece of tangible
evidence, and inquiries into possible defense theories, both as to guilt and as
to punishment. Paragraph (a)(2) is implicit in DR 7-102(A)(3), which provided that "a lawyer shall not ... knowingly fail to disclose that which he is required by law to reveal." With regard to paragraph (a)(3), the first sentence of this subparagraph is similar to DR 7-102(A)(4), which provided that a lawyer shall not "knowingly use" perjured testimony or false evidence. The second sentence of paragraph (a)(3) resolves an ambiguity in the former Code concerning the action required of a lawyer who discovers that the lawyer has offered perjured testimony or false evidence. DR 7-102(A)(4), quoted above, did not expressly deal with this situation, but the prohibition against "use" of false evidence can be construed to preclude carrying through with a case based on such evidence when that fact has become known during the trial. Prior Alabama DR 7-102(B)(1) provided that a lawyer "who receives information clearly establishing that ... his client has ... perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall withdraw from employment."
Paragraph (c)
confers discretion on the lawyer to refuse to offer evidence that the lawyer
"reasonably believes" is false. This gives the lawyer more latitude than DR
7-102(A)(4), which prohibited the lawyer from offering evidence the lawyer
"knows" is false. |
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