This rule governs the conduct of a lawyer who is representing a client in a tribunal. It also
applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to
the tribunal’s adjudicative authority, such as a deposition. Thus, subrule (a) requires a lawyer to
take reasonable remedial measures if the lawyer comes to know that a client who is testifying in
a deposition has offered evidence that is false.
As officers of the court, lawyers have special duties to avoid conduct that undermines the
integrity of the adjudicative process. A lawyer acting as an advocate in an adjudicative
proceeding has an obligation to present the client’s case with persuasive force. Performance of
that duty while maintaining confidences of the client is qualified, however, by the advocate’s
duty of candor to the tribunal. . Consequently, although a lawyer in an adversary proceeding is
not required to present an impartial exposition of the law or to vouch for the evidence submitted
in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact
or evidence that the lawyer knows to be false.
Representations by a Lawyer.
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, because 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(c) not to counsel a client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with Rule 1.2(c), see the comment to that rule. See also the
comment to Rule 8.4(b).
Legal Argument.
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. Furthermore, as stated in paragraph (a)(2),
an advocate has a duty to disclose directly controlling adverse authority that has not been
disclosed by the opposing party. The underlying concept is that legal argument is a discussion
seeking to determine the legal premises properly applicable to the case.
Offering Evidence.
Paragraph (a)(3) requires that a lawyer refuse to offer evidence that the lawyer knows to be false,
regardless of the client’s wishes. This duty is premised on the lawyer’s obligation as an officer
of the court to prevent the trier of fact from being misled by false evidence. A lawyer does not
violate this rule if the lawyer offers the evidence for the purpose of establishing its falsity.
If a lawyer knows that the 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.
If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must
refuse to offer the false evidence. If only a portion of a witness’ testimony will be false, the
lawyer may call the witness to testify but may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is false. A lawyer’s knowledge that evidence is
false can be inferred from the circumstances. Thus, although a lawyer should resolve doubts
about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore
an obvious falsehood.
Remedial Measures.
Having offered material evidence in the belief that it was true, a lawyer may subsequently come
to know that the evidence is false. Or a lawyer may be surprised when the lawyer’s client, or
another witness called by the lawyer, offers testimony the lawyer knows to be false, either during
the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In
such situations, or if the lawyer knows of the falsity of testimony elicited from the client during a
deposition, the lawyer must take reasonable remedial measures. If that fails, the lawyer must
take further remedial action. It is for the tribunal then to determine what should be done–making
a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing
The disclosure of a client’s false testimony can result in grave consequences to the client,
including a sense of betrayal, the loss of the case, or perhaps a prosecution for perjury.
However, the alternative is that the lawyer aids in the deception of the court, thereby subverting
the truth-finding process that the adversarial system is designed to implement. See Rule 1.2(c).
Furthermore, unless it is clearly understood that the lawyer must remediate the disclosure of false
evidence, the client could simply reject the lawyer’s counsel to reveal the false evidence and
require that the lawyer remain silent. Thus, the client could insist that the lawyer assist in
perpetrating a fraud on the court.
Preserving Integrity of Adjudicative Process.
Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that
undermines the integrity of the adjudicative process, such as bribing, intimidating, or otherwise
unlawfully communicating with a witness, juror, court official, or other participant in the
proceeding, unlawfully destroying or concealing documents or other evidence, or failing to
disclose information to the tribunal when required by law to do so. Thus, paragraph (b) requires
a lawyer to take reasonable remedial measures, including disclosure, if necessary, whenever the
lawyer knows that a person, including the lawyer’s client, intends to engage, is engaging, or has
engaged in criminal or fraudulent conduct related to the proceeding. See Rule 3.4.
Duration of Obligation.
A practical time limit on the obligation to rectify the presentation of false evidence or false
statements of law and fact must be established. The conclusion of the proceeding is a reasonably
definite point for the termination of the obligation.
Ex Parte Proceedings.
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 that are known to
the lawyer and that the lawyer reasonably believes are necessary to an informed decision.
Withdrawal.
Normally, a lawyer’s compliance with the duty of candor imposed by this rule does not require
that the lawyer withdraw from the representation of a client whose interests will be or have been
adversely affected by the lawyer’s disclosure. The lawyer may, however, be required by Rule
1.16(a) to seek permission of the tribunal to withdraw if the lawyer’s compliance with this rule’s
duty of candor results in such an extreme deterioration of the client-lawyer relationship that the
lawyer can no longer competently represent the client. Also see Rule 1.16(b) for the
circumstances in which a lawyer will be permitted to seek a tribunal’s permission to withdraw.
In connection with a request for permission to withdraw that is premised on a client’s
misconduct, a lawyer may reveal information relating to the representation only to the extent
reasonably necessary to comply with this rule or as otherwise permitted by Rule 1.6.
