Truthfulness to the Court: Even When it Hurts
| Publication year | 1993 |
| Pages | 957 |
| Citation | Vol. 05 No. 1993 Pg. 957 |
1993, May, Pg. 957. Truthfulness to the Court: Even When it Hurts
On January 1, 1993, the Colorado Rules of Professional Conduct ("Rules") replaced the Code of Professional Responsibility ("Code") as the ethics guidelines for the practice of law in Colorado. (The new Rules were printed in their entirety in the October 1992 issue of The Colorado Lawyer.) This article discusses the lawyer's duty of honesty and truthfulness to the court under the Rules and how the Rules differ from the Code.
Attorneys have a special responsibility to be honest and truthful. This has long been recognized and incorporated in professional ethics standards.(fn1) It stems from the fact that attorneys are not merely representatives of clients but officers of the court and guardians of the law.(fn2) This special responsibility extends to both personal and professional life(fn3) and applies to an attorney's dealings with clients,(fn4) third parties(fn5) and the courts.
The attorney's duty of honesty and truthfulness to the court is addressed in Rule 3.3 of the new Rules, as detailed below.
Concerning candor toward the tribunal, Rule 3.3 states as follows:
(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;
(3) 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
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and later learns that the evidence is false, 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, 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.
Rule 3.3(a)(1) requires that a lawyer's statements to a court or other tribunal be truthful. This is substantially the same as DR 7-102(5) of the former Code.
For example, an attorney in a commercial lawsuit was suspended when the court found that he misrepresented the actions of opposing counsel in a pleading and in a letter to the Colorado Supreme Court Grievance Committee.(fn6) In another case, a New Jersey attorney was disbarred for numerous ethical violations, including misrepresenting the amount of rent his client owed in an eviction action.(fn7)
It does not matter if the statements an attorney makes are written or oral, or if the attorney is under oath. Accordingly, a Florida attorney was disciplined for informing the court that he could not proceed to trial because he thought the trial had been continued, he had released a critical witness from subpoena and he was unable to contact the witness. In fact, the witness had never been subpoenaed or even informed of the trial.(fn8)
Disbarment resulted in a Colorado case where the court found that a lawyer had counseled a client to testify falsely in a bankruptcy hearing and had given a false answer to a question by the judge.(fn9) The same result occurred in another case when the court found that a lawyer had placed a client's signature on a separation agreement without the client's knowledge or consent.(fn10) Another Colorado attorney was suspended for misrepresenting a client's damages in a
Rule 3.3(a)(2) requires a lawyer to disclose material facts to a tribunal when necessary to avoid assisting a criminal or fraudulent act by a client. This recognizes that situations arise where a failure to disclose amounts to misrepresentation. Thus, an attorney may not cover up facts harmful to his or her case by evasive discovery answers. Doing so may result in disciplinary action(fn12) and disqualification from the case.(fn13)
Failure to disclose also may affect the outcome of a suit. For example, in one Michigan personal injury lawsuit, plaintiff's counsel did not disclose that his client had died a few weeks prior to settlement. The court set aside the settlement, holding that plaintiff's counsel had a duty under Rule 3.3 to reveal the death.(fn14)
Rule 3.3(a)(3) requires a lawyer to disclose any legal authority in the controlling jurisdiction that is directly adverse to the client's position. This rule is substantially the same as former DR 7-106 (B)(1).
This duty continues during the pendency of a case. For example, when the trial court has denied a...
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