CHAPTER 2 - 2-3 CANDOR TO THE TRIBUNAL

• Jurisdiction: United States

2-3 Candor to the Tribunal

A lawyer may not knowingly make a false statement of fact or law to a tribunal or fail to correct a previously made false statement related to a material fact.⁴² The present rule differs from the historical one in that earlier versions contained the modifier "material" related to the nature of the fact in issue in the first instance. Thus, the rule now prohibits making any statement that is false but only requires remedial measures if a previously made false statement related to a material fact. As with the filing of frivolous proceedings, courts are quick to sanction lawyers who offer false evidence once a proceeding has begun.

2-3:1 False or Misleading Statements

Cases involving Rule 3.3(a)(1) violations arise in a variety of factual and procedural circumstances. In Daniels v. Alander⁴³ two attorneys were found to have violated the rule when one misrepresented to a judge during an ex parte proceeding what had happened in parallel proceedings in another state and the other did nothing to correct the misstatement. In Disciplinary Counsel v. Morrocco,⁴⁴ an attorney was suspended for misrepresenting to the Grievance Committee whether a judge would allow him to miss a court appointment to attend a hearing on a disciplinary case against him. In Statewide Grievance Committee v. Bartinik⁴⁵ an attorney was reprimanded when he told his opponent and the voir dire panel that his dead client would be joining him at the courthouse at 11:00 and then settled the case without revealing her death. In Statewide Grievance Committee v. Kennelly⁴⁶ an attorney was reprimanded for lying to his opponent about how much coverage was available on an insurance policy and failing to correct the error when a pretrial judge, having received this information from opposing counsel, proceeded to use this information in settlement of the case.

In O'Brien v. Superior Court a lawyer was sanctioned for a violation of Rule 3.3(a)(1) when he made a claim of privilege concerning a document that he had already allowed into evidence without objection. As privilege is an evidentiary objection and may be waived, once the matter was admitted without objection, there was no viable claim of privilege that could be made.⁴⁷ In Yamin v. Savarese and Schefiliti, P.C., a monetary sanction against an attorney was upheld where he had misrepresented the contents of an interrogatory in both a motion to dismiss and a motion in limine.⁴⁸ In Statewide Grievance Committee v. Friedland, one of the charges related to a disbarment concerned the fact that the lawyer had misrepresented to an immigration appeals court the state of his client's knowledge of certain orders that had been issued.⁴⁹

Though all of the above matters, save Morrocco, occurred in court proceedings, it should be noted that the rule is not limited to courts, but applies to all tribunals. The definitional rule for tribunals, Rule 1.0(n), includes arbitrations and proceedings before a legislative or administrative body acting in an adjudicative capacity.⁵⁰

Rule 3.3 contains a "knowing" requirement. In order for an attorney to be sanctioned for a violation of the rule, she must know of the falsity of the statement. Rule 1.0(g) defines "knows" or "knowing" as actual knowledge of the fact in question, but does permit knowledge to be inferred from circumstances. Thus, the rule contains an intent or scienter requirement.

The question of whether scienter is required in ethics violations is an open one. In Faile v. Zarich, one judge held that there was no scienter required for any ethics violation.⁵¹ Other decisions have been more limited. In Ansell v. Statewide Grievance Committee an attorney appealed the imposition of a reprimand in a matter where she had told a trial court that there had been ex parte contact between her opponent and a psychological evaluator hired to investigate a child's mental health.⁵² The attorney's defense was that she did not make an intentional misrepresentation of the facts, but rather as she had been retained after the fact and had been relying on transcripts of arguments made at an earlier proceeding, had misunderstood what had occurred and that her conduct was, at worst, negligent. The Grievance Committee did not find a Rule 3.3(a)(1) violation, but did find violations of Rules 3.4(5) (alluding at trial to unsupported matters) and 8.4(3) (engaging in conduct involving fraud, deceit or misrepresentation). On appeal the Appellate Court noted that neither of these rules had a scienter requirement.⁵³

In Rozbicki v. Statewide Grievance Committee, a trial court noted that the Grievance Committee, while finding a Rule 3.1 violation, did not find Rule 3.3(a)(1) to have been violated where the lawyer making certain claims had investigated them and reasonably believed them to be true.⁵⁴ Contrast, however, Henry v. Statewide Grievance Committee, where an attorney was disciplined for making a false statement to a judge when seeking a capias.⁵⁵ On appeal, the attorney argued, relying on the commentary to the rule, that as long as he had a reasonable belief that the statement was true when he made it, he could not be sanctioned. The Appellate Court rejected the argument, noting that the commentary was a tool for interpretation prepared by the drafters of the rules and had not been adopted by the judges as substantive law.

In Victor v. Powell a pro hac vice application of an out-of-state...