§10.4 RPC 3.3, 3.4(b): Candor to a Tribunal

• Jurisdiction: Washington

IV. RPC 3.3, 3.4(b): CANDOR TO A TRIBUNAL

RPC 3.3 and RPC 3.4(b) govern candor by attorneys toward tribunals.

A. RPC 3.3(a)(1), (2), (4); RPC 3.3(c), (d): The Primary Rules

In Washington, the analysis under the rules governing candor to a tribunal is similar to that under RPC 4.1, discussed in Section III., above, although RPC 3.3 tolerates slightly less deception than does RPC 4.1 governing candor to "third persons." The primary rule prohibiting false statements of law or fact to a tribunal does not qualify that prohibition with the word "material," as does RPC 4.1. On the other hand, the duty to correct previous misstatements is qualified so that there is only a duty to correct previous "material" false statements. And in Washington, the duty under RPC 3.3(a)(2) to disclose previous fraud on the tribunal by the client is identical to the duty owed to third persons under RPC 4.1(b). The net effect is that although a lawyer may not knowingly make false statements or introduce false evidence to a tribunal, once a false statement has been made or false evidence introduced—wittingly or unwittingly—the lawyer has a duty to correct the falsity, unless (perhaps) the information is protected by the duty of confidentiality.⁸¹

This last point highlights several major differences between the Washington duty of candor to a tribunal and that found in the ABA model rules. As a result of the 2003 changes to the model rules, lawyers are expected to disclose client confidences to a tribunal if necessary to prevent future criminal or fraudulent conduct relating to the proceeding.⁸² In Washington, a lawyer is permitted to disclose confidences if reasonably necessary to prevent a client crime.⁸³ So under both the Washington rules and the model rules, a lawyer may disclose to prevent a client from committing perjury (or other criminal interference with the proceeding). On the other hand, the duty to correct past fraud on the tribunal in Washington is subordinate to the duty of confidentiality, but not so under the model rules.⁸⁴ This was the position taken by Washington when it amended its ethics rules in 1986, and the Supreme Court decided to retain this difference in 2006. It is worth reiterating here that the court's decision on RPC 3.3 was taken against the recommendation of the WSBA Ethics 2003 Task Force, which was itself endorsed by the WSBA Board of Governors.⁸⁵

Thus, Washington's version of RPC 3.3 remains quite different from the ABA version in subordinating the duty of candor to the duty of confidentiality. It is also much more protective of confidentiality than the Washington ethics rules in place prior to 1986.⁸⁶ This means that if a lawyer in Washington hears a witness present what the lawyer knows is false testimony, and that testimony relates to the lawyer's representation of his or her client, the lawyer must analyze his or her right or duty to alert the court to the false testimony by reference first to the duty of confidentiality. If the information is protected by the duty of confidentiality, and the witness is the lawyer's own client, the lawyer should try to persuade the client to correct the testimony. But if that effort fails, the lawyer is required to seek to withdraw and may not disclose the known falsity.⁸⁷ Because of the close relationship between the duties of candor and confidentiality, we have discussed this topic at much greater length in Chapter 6 (Confidentiality). We have not repeated that discussion here, so readers should refer to that chapter if they need more elaboration of these points.

Another area in which the primacy of the duty of confidentiality emerges is when, in a criminal sentencing proceeding, defense counsel knows that the prosecution or the court is laboring under a misunderstanding about the defendant's criminal history. Defense counsel may not misrepresent the facts if asked directly, but equally may not volunteer information to the court absent client consent or some other applicable exception to the duty of confidentiality.⁸⁸ If the client affirmatively misleads the court, however, continued representation of the client will violate RPC 3.3(a)(2), and if the client will not consent to disclosure, the lawyer will be required to seek to withdraw.⁸⁹

The relative primacy of confidentiality over candor in the Washington RPC, however, remains murky and confusing. Not only must the distinction between future fraud on the tribunal and past fraud be made, but there remains a question about past false statements, depending on their source. When the work of picking and choosing between the 2003 model rule version of 3.3 and the prior Washington version was done, a technical ambiguity was introduced into RPC 3.3(a) that may not have been intentional. The court adopted the revised version of MRPC 3.3(a)(1) verbatim, including the new language "fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." The court, however, simultaneously carried over old Washington RPC 3.3(a)(2), which is not included in the ABA model rules: "[F]ail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client unless such disclosure is prohibited by Rule 1.6." Read together, these two subsections seem, on the one hand, to impose a duty on a lawyer to correct a false statement made by the lawyer (even if the lawyer discovers its falsity only through confidential information after the fact from the client) but, on the other hand, to eliminate such a duty if a false statement (or other deception) is made by the client when the information is confidential. There is no "confidentiality" proviso when the false statement was made by the lawyer, making the duty of candor superior to that of confidentiality, but there is such a proviso when it is the client's fraud. The subordination of the duty of confidentiality in RPC 3.3(a)(1) is consistent with the model rule, which makes confidentiality subordinate to candor throughout RPC 3.3. But it is not consistent with the superior place given to confidentiality in Washington RPC 3.3(a)(2), (c), and (d). Just how this apparent inconsistency will be resolved by the court remains to be seen. The central thrust of the court's approved version of RPC 3.3, however, and its rejection of the ABA approach mandating disclosure suggest that the court is likely to read a confidentiality proviso into Washington RPC 3.3(a)(1).

To summarize, what may or must a lawyer do if the lawyer finds he or she has introduced false evidence or unwittingly made false statements to a tribunal? If the information is not protected by the duty of confidentiality or it is a false statement made by the lawyer, the lawyer must disclose the misinformation.⁹⁰ If the information is protected by the duty of confidentiality and the information is "material evidence" presented by the lawyer or information relating to a "criminal or fraudulent act by the client," the lawyer must make reasonable efforts to convince the client to disclose, but failing that the lawyer must seek to withdraw.⁹¹ The rule itself says that in this latter circumstance, the lawyer "may" seek to withdraw. But continuing with the representation without disclosure in most cases would constitute knowing assistance of a client crime or fraud, and a lawyer is required to withdraw rather than to provide such assistance.⁹² The rule does not expressly permit the lawyer to disclose the reasons for seeking to withdraw if the information is otherwise confidential, unless the lawyer is ordered to do so by the judge or some other exception applies.⁹³ If permission to withdraw is denied (when permission is required), the lawyer is permitted to continue notwithstanding good cause for withdrawal.⁹⁴ Continuing with the representation notwithstanding the fraud perpetrated on the court is not a happy alternative, and some lawyers have been willing to submit to contempt rather than do so. As discussed in Chapter 6 on confidentiality, however, it may be that, for an attorney faced with a conflict between a duty not to assist a client fraud on the court and the duty of confidentiality, disclosure will be mandated.⁹⁵ In that event, a lawyer will be obliged to disclose in such a situation notwithstanding the primacy given to confidentiality by RPC 3.3.

Author's Commentary As should be clear from our comments on this point in the chapter on confidentiality, Commentary we think that the rejection by the Supreme Court of the duty to disclose false statements and evidence presented to the court, when the information is otherwise protected by the duty of confidentiality, is unjustified. It is also hugely problematic in light of the intricacy of the exceptions to the duty of confidentiality and the difficulties faced by a lawyer who is told he or she must seek to withdraw, but is denied the right to explain the grounds for doing so. The duty not to disclose under RPC 3.3 is still more complicated when one realizes that Rule 26 of the civil discovery rules (CR 26) imposes an affirmative duty on a lawyer "seasonably to supplement" discovery responses if he or she discovers the response was incorrect when made or "is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment."⁹⁶ A knowing violation of this rule is also a violation of the Rules of Professional Conduct under RPC 3.4(c). In Washington, CR 26(e) covers testimony given (and evidence submitted) during depositions, which the comments to RPC 3.3 say are covered by RPC 3.3.⁹⁷ So civil lawyers seem to be caught between their duties to comply with CR 26 under RPC 3.4(c) and their duties not to disclose past falsity under RPC 3.3 When all is said and done, the view of the Court of Appeals in State v. Berrysmith seems the only satisfactory resolution of this problem: "[I]f Berrysmith had actually taken

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