Rule Text
(a) A lawyer shall not knowingly:
(1) 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
(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. 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 an adjudicative proceeding 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, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, 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.
Amendment history: Amended April 11, 2006, effective July 1, 2006; amended August 5, 2014, effective October 6, 2014; amended February 6, 2024, effective April 15, 2024. Ethical to advise court of defendant’s untruths. — Where the defendant, on advice of counsel, wished to exercise his constitutional right to testify in his own defense and where, at the same time, counsel had reason to believe, based upon his experience with the defendant, that some of the testimony counsel would elicit upon his examination of the defendant would be false, then the situation presented counsel with a difficult dilemma, so that his ex parte discussion with the court, during which he expressed concern that the defendant’s testimony would include untruths, was not a violation of his ethical duty nor evidence of a conflict of interest. United States v. Litchfield, 959 F.2d 1514, 1992 U.S. App. LEXIS 5095 (10th Cir. Wyo. 1992). Misrepresentation by attorney. — Suspension of an attorney from the practice of law was appropriate because the attorney misrepresented communications with the client and the client’s insurer during status conferences. Bd. of Prof’l Responsibility v. Jerabek, 2022 WY 134, 2022 WY 134A, 519 P.3d 309, 2022 Wyo. LEXIS 137 (Wyo. 2022). Failure to disclose legal authority in a controlling jurisdiction. — Attorney failed in his duty under Wyo. R. Prof. Conduct 3.3(a)(2) to inform the court of legal authority in a controlling jurisdiction known to the attorney to be adverse to the attorney’s client as she did not inform the court that the hospital at issue was out-of-state and that she had not served the hospital with the subpoena. Bd. of Prof’l Responsibility v. Rostad, 2023 WY 19, 525 P.3d 257, 2023 Wyo. LEXIS 19 (Wyo. 2023). Public censure appropriate for alteration of documents. — Where an attorney altered dates on documents filed with the court, and notarized a document with a false date, public censure was appropriate discipline. Board of Professional Responsibility, Wyo. State Bar v. McLeod, 804 P.2d 42, 1991 Wyo. LEXIS 6 (Wyo. 1991). Default judgment not an appropriate sanction for a change in testimony. — After plaintiff employee sustained personal injuries at work, he filed a co-employee liability action against defendants, the company’s owner, the general construction superintendent, and the project superintendent; the first trial resulted in a mistrial due to certain comments made by plaintiff’s counsel during opening statements about the project superintendent’s change in testimony. The trial court acted within its discretion by ordering plaintiff to pay jury costs as a sanction; because the change in testimony was sufficiently presented to the jury, the trial court did not abuse its discretion by refusing to order a default judgment as a sanction under this rule. Dollarhide v. Bancroft, 2010 WY 126, 239 P.3d 1168, 2010 Wyo. LEXIS 134 (Wyo. 2010). Public censure appropriate for lack of candor. — Public censure of an attorney, who was employed as a senior assistant district attorney for a county, was appropriate because the attorney demonstrated a lack of candor to the tribunal in a criminal case when the attorney acted with knowledge but not intent to deceive the court in failing to correct the false testimony given by a law enforcement special agent. Bd. of Prof’l Responsibility v. Singleton, 2021 WY 70, 486 P.3d 1020, 2021 Wyo. LEXIS 78 (Wyo. 2021). Suspension proper for breach of confidentiality. — Respondent was suspended from the practice of law in Wyoming for 60 days because the record contained clear and convincing evidence that she violated Wyo. R. Prof. Conduct 1.6 (Confidentiality of Information) and 3.3 (Candor Toward the Tribunal) as she revealed confidential information for which disclosure was not authorized based on two assertions in her motions to withdraw, i.e., statements about her client’s failure to cooperate with her and/or with discovery and that her client had contacted a realtor to sell the property in contravention of the stipulated order, and she made false assertions in her motions to withdraw. Bd. of Pro. Resp. v. Austin, 2023 WY 110, 538 P.3d 653, 2023 Wyo. LEXIS 112 (Wyo. 2023).
Committee Notes
[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(n) for the definition of “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, for example, paragraph (a)(3) 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. [2] This Rule sets forth the special duties of lawyers as officers of the court 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, however, is qualified 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. [3] 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. [4] 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 adverse authority in the controlling jurisdiction 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. [5] Paragraph (a)(3) requires that the 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. [6] 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’s 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. [7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, counsel may be required by law to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements. See also, Comment [9]. [8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(g). 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. [9] Although paragraph (a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer believes is false. 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. Because of the special protections historically provided criminal defendants, however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s decision to testify. See also, Comment [7]. Remedial Measures. [10] 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. In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. 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. [11] The disclosure of a client’s false testimony 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. Preserving Integrity of Adjudicative Process. [12] 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. Duration of Obligation. [13] A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. 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. Ex Parte Proceedings. [14] 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 any 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. Withdrawal. [15] 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. Definitional Cross-References “Fraudulent” See Rule 1.0(e) “Knowingly” and “Known” and “Knows” See Rule 1.0(g) “Reasonable” See Rule 1.0(i) “Reasonably believes” See Rule 1.0(j) “Tribunal” See Rule 1.0(n)
