Formal Opinion No. 123: Candor to the Tribunal and Remedial Measures in Civil Proceedings-adopted June 18, 2011
| Publication year | 2011 |
| Pages | 17 |
2011, December, Pg. 17. Formal Opinion No. 123: Candor to the Tribunal and Remedial Measures in Civil Proceedings-Adopted June 18, 2011
December 2011
Vol. 40, No. 12 [Page17]
Introduction and Scope
The Colorado Rules of Professional Conduct (Colo. RPC or Rules) establish a lawyer's duties of candor to tribunals. This opinion addresses the lawyer's duties of candor only in civil matters. In criminal litigation, the accused has constitutional rights to testify and to the assistance of counsel, which may require a different analysis.
Following an analysis of the lawyer's duties in civil matters, the Colorado Bar Association Ethics Committee (Committee) provides four illustrations designed to provide practical guidance to lawyers facing these situations.
Syllabus
Colo. RPC 3.3(a)(3) prohibits a lawyer from offering evidence that the lawyer knows to be false. If a lawyer knows that a client or a witness called by the lawyer has offered material evidence that is false, the lawyer has a duty to take reasonable remedial measures. This duty may override a lawyer's duty under Colo. RPC 1.6(a) not to disclose information relating to the representation of the client.
If the false evidence was presented by a client (for example by testimony at a trial or hearing), the lawyer must remonstrate confidentially with the client. If the client refuses to rectify or permit the lawyer to rectify the situation, then the lawyer must take further remedial action. In most cases, withdrawal of the false evidence, with the consent of the tribunal, will constitute an adequate remedial measure. In some cases, the conflicts created will require the lawyer to withdraw from the representation. Depending on the circumstances, withdrawal from the representation alone may or may not be an adequate remedial measure, and in some cases, the tribunal may not permit the lawyer's withdrawal. When the tribunal does not permit withdrawal from the representation or when withdrawal from the representation alone is insufficient to undo the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is necessary to undo the effect of the false evidence.
The content of the disclosure that may be required by Colo. RPC 3.3 necessarily depends on the facts and circumstances. Nevertheless, certain general principles offer guidance. In most situations, Colo. RPC 3.3 will not require the disclosure of information protected by the attorney-client privilege; and in all situations, the lawyer should make every reasonable effort to avoid the disclosure of privileged information. However, in some circumstances, only the disclosure of information that may be protected by the attorney-client privilege will be sufficient to meet the lawyer's obligations under Colo. RPC 3.3. In those limited circumstances, the plain language of Colo. RPC 3.3 does not create an exception for information that may be protected by the attorney-client privilege. Such disclosures must be limited to those that are reasonably necessary to undo the effects of the false evidence and must be made in a manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3. The lawyer has a continuing duty to object, in all testimonial or evidentiary contexts, to the introduction into evidence of privileged information, including the information previously disclosed by the lawyer under Colo. RPC 3.3. It is then the responsibility of the tribunal to address the evidentiary use of communications that are protected by the attorney-client privilege.
Finally, under Colo. RPC 3.3(a)(1), a lawyer has a duty to remedy a false statement of material fact or law made by the lawyer, and in this regard, reasonable remedial measures may require the lawyer to disclose the false statement to the tribunal. In this case, too, the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.
Analysis
I. Candor to the Tribunal: Colo. RPC 3.3
Colo. RPC 3.3 provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of material 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 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.
Colo. RPC 1.0(m) defines a "tribunal" as
a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.
Thus, under Colo. RPC 3.3, the lawyer has several separate duties of candor to a tribunal. Each of these duties presents the lawyer with separate but related problems. See 2 Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering, § 29.8, at 29-9 to 29-10 (Supp. 2007) (Hazard and Hodes). This opinion addresses only the prohibitions against offering false evidence, the duty to take remedial measures regarding false evidence, and the duty to correct false statements by the lawyer.(fn1)
A. Materiality
Certain of the duties imposed by Colo. RPC 3.3 turn on whether statements made to the tribunal or evidence offered in the proceeding are "material." The Colorado Rules do not define "material," and different jurisdictions have derived different definitions of materiality in the context of their counterparts to Colo. RPC 3.3. The Colorado Supreme Court interpreted "materiality" under Colo. RPC 3.3(a)(1) in In re Fisher.(fn2) There, the Supreme Court held that
the concept of materiality encompassed in Colo. RPC 3.3(a)(1) is not directed by the outcome of a particular matter, but rather whether there is potential that the information could influence a determination as to that matter.(fn3)
B. Confidential Remonstration with the Client
The concept of confidential remonstration with the client is a fundamental part of the reasonable remedial measures mandated by Colo. RPC 3.3. Comment [6] to Colo. RPC 3.3 describes the process as follows:
If a lawyer learns that the client or a witness that the lawyer plans to call intends to offer false evidence, the first challenge for the lawyer is to remonstrate with the client to attempt to persuade the client or witness that the false evidence should not be offered. It is at this initial stage that the problem of false evidence is best and most frequently resolved.
The Restatement (Third) of the Law Governing Lawyers (Restatement) further explains this process as follows:
Restatement, § 120, cmt. [g] (2000) (emphasis added)Remonstrating with a client or witness. Before taking other steps, a lawyer ordinarily must confidentially remonstrate with the client or witness not to present false evidence or to correct false evidence already presented. Doing so protects against possibly harsher consequences. The form and content of such a remonstration is [sic] a matter of judgment. The lawyer must attempt to be persuasive while maintaining the client's trust in the lawyer's loyalty and diligence. If the client insists on offering false evidence, the lawyer must inform the client of the lawyer's duty not to offer false evidence and, if it is offered, to take appropriate remedial action (see Comment h).
In his treatise on modern legal ethics, Professor Charles W. Wolfram details the process of remonstrating with a client or witness:
Remonstration is clearly required: a lawyer must attempt to persuade a client not to present or, if it is presented, to correct, false testimony. Remonstration in most cases should cover the fact that perjury is a criminal offense, the risks of its deception, and the...
To continue reading
Request your trial