II. Candor in Context

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. Candor in Context

Model Rule of Professional Conduct 3.3, broadly entitled "Candor Toward the Tribunal," contains several provisions critical to trial and appellate lawyers. The first is Rule 3.3(a)(1), which provides that a lawyer shall not knowingly "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."¹⁰ Before the 2002 amendments to the Model Rules, this rule provided: "A lawyer shall not knowingly . . . make a false statement of material fact or law to a tribunal."¹¹ The 2002 amendments to Model Rule 3.3(a)(1) reflect the belief that lawyers should never knowingly make false statements to courts and other adjudicatory bodies regardless of whether such statements are material.¹² The addition of the second clause to Model Rule 3.3(a)(1) strengthened lawyers' duty to correct material false statements once made. That duty already existed under Model Rule 3.3(a)(1), as well as Model Rules 8.4(c) and (d), but was not clearly expressed.¹³ Some jurisdictions declined to adopt the 2002 amendments to the Model Rules and retain the materiality requirement in all aspects of Rule 3.3(a)(1). Regardless, lawyers' duty of candor continues to the conclusion of a proceeding and applies even if compliance requires the disclosure of client confidences.¹⁴

It is generally understood that lawyers' duty of candor is not limited to situations in which they are representing clients. Rather, the duty of candor attaches whenever a lawyer communicates with a tribunal. Lawyers who appear pro se owe the same high duty of candor to the tribunal that they would owe if appearing on behalf of a client.¹⁵ Courts' need to rely on the truthfulness of lawyers' statements does not depend on whether a lawyer is appearing pro se or on a client's behalf. Furthermore, lawyers can be disciplined for false statements made to a tribunal as a party or a witness.¹⁶ The requirement that lawyers be truthful at all times is a simple and unambiguous standard that does not depend on the circumstances and that is not excused by the embarrassment or stress that accompanies being a party or witness in litigation.

There is, however, a competing position. While the text of Model Rule 3.3(a)(1) does not require a lawyer to be representing a client for the duty of candor to attach, a comment to Model Rule 3.3 states that the rule "governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal" or "in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition."¹⁷ Some courts therefore hold that lawyers owe a duty of candor to tribunals under Rule 3.3(a)(1) only when representing clients—not when they are appearing in a personal capacity.¹⁸ Although the text of the rule should control over the comment and there are good reasons to hold that lawyers owe a duty of candor to tribunals regardless of the capacity in which they appear, whether Rule 3.3(a)(1) is limited to lawyers who are representing clients may be relatively unimportant in the end. After all, lawyers who knowingly make false statements of fact or law to tribunals when appearing as witnesses or when representing themselves tempt serious discipline under other rules of professional conduct.¹⁹

When addressing a tribunal, a lawyer's statements are essentially made under oath.²⁰ The duty of candor imposed under Rule 3.3 is exceptionally high.²¹ "Candor" in this context describes a duty much higher than most people would associate with the term in everyday life. Where lawyers' communications with tribunals are concerned, candor "'means to treat a subject with fairness, impartiality, and to be outspoken, frank, and veracious, and is synonymous with other terms describing morality.'"²² Lying to a tribunal is never condoned.²³ A lawyer may never knowingly mislead a court or other tribunal.²⁴

The Model Rule 3.3(a)(1) prohibitions are not limited to lawyers' statements to courts,²⁵ as the defined term "tribunal" firmly establishes.²⁶ Lawyers' duty of candor also attaches in administrative and regulatory proceedings,²⁷ and private arbitrations.²⁸ Extending lawyers' duty of candor to arbitrators is necessary, inasmuch as arbitrators act as private judges. Arbitrators administer oaths, receive evidence, find facts, apply the law to the facts of the cases they hear, issue binding decisions, and generally assume a judicial or quasi-judicial role in matters over which they preside. Arbitration would be ineffective as a form of dispute resolution if lawyers were not required to be candid with arbitrators. The same rationale holds true with respect to adjudicatory proceedings before administrative and regulatory agencies.

Model Rule 3.3(a)(1) potentially overlaps with Model Rule 4.1(a), which provides that when representing clients, lawyers shall not knowingly make false statements of material fact or law to "a third person."²⁹ There is ample authority for the proposition that a tribunal is a third person within the meaning of Model Rule 4.1(a).³⁰ There are, however, competing views on the application of Model Rule 4.1(a) to a lawyer's false statements to a tribunal.³¹ On the one hand, Model Rule 4.1(a) refers to "a third person," meaning anyone other than the lawyer's client, and it therefore must apply to lawyers' statements to tribunals. This perspective makes sense given courts' desire to broadly eradicate dishonesty by lawyers, even if the result is apparent overlap or redundancy in ethics rules. On the other hand, if Model Rule 4.1(a) were meant to apply to lawyers' statements to tribunals, the drafters surely would have used the word "tribunal" in the rule, there would have been no need for the prohibition included in Model Rule 3.3(a)(1), and Model Rule 4.1(a) would render Model Rule 3.3(a)(1) redundant. The fact that Model Rule 4.1(a) makes no mention of tribunals while Model Rule 3.3(a)(1) does suggests that only the latter applies to lawyers' communications with courts and other judicial and quasi-judicial bodies. In any event, whether Rule 4.1(a) applies to lawyers' statements to tribunals is in most cases inconsequential, since Rule 3.3(a)(1) clearly does, and a lawyer who violates Rule 3.3(a)(1) is in substantial trouble on that basis alone.³²

Model Rule 3.3(a)(1) often overlaps with Model Rule 8.4(c),³³ which broadly prohibits "conduct involving dishonesty, fraud, deceit or misrepresentation."³⁴ A lawyer who violates Model Rule 3.3(a) generally violates Model Rule 8.4(c) as well,³⁵ and a lawyer who lies to a tribunal may be disciplined for violating Rule 8.4(c) without any mention by the court of Rule 3.3.³⁶ Finally, a lawyer's violation of Model Rule 3.3(a) also implicates Model Rule 8.4(d), which prohibits conduct that is prejudicial to the administration of justice.³⁷ Courts routinely rely on Rule 8.4(d) to discipline lawyers who lie to or mislead tribunals.³⁸

In summary, lawyers' duty of candor to tribunals is critical. As the court in United States v. Shaffer Equipment Co.³⁹ explained:

Our adversary system for the resolution of disputes rests on the unshakable foundation that truth is the object of the system's process which is designed for the purpose of dispensing justice. However, because no one has an exclusive insight into truth, the process depends on the adversarial presentation of evidence, precedent and custom, and argument to reasoned conclusions—all directed with unwavering effort to what, in good faith, is believed to be true on matters material to the disposition. Even the slightest accommodation of deceit or lack of candor in any material respect quickly erodes the validity of the process. As soon as the process falters in that respect, the people are then justified in abandoning support for the system in favor of one where honesty is preeminent.⁴⁰

Indeed, lawyers may owe a duty of candor to tribunals broader than that imposed by any ethics rules and which ethics rules do not supplant.⁴¹ This broader, general duty of candor derives from lawyers' larger duty to protect the integrity of the judicial process. A court may therefore sanction a lawyer for a dishonest act that arguably does not violate Rule 3.3.⁴²

A. False Statements of Fact or Law

To violate Model Rule 3.3(a)(1), a lawyer's false statement must be knowingly made. In other words, a lawyer must actually know that a statement is or was false to be accountable for it under the rule.⁴³ The fact that a lawyer should have known his statements were false will not support a Rule 3.3(a)(1) violation.⁴⁴ A lawyer's innocent mistakes or misstatements when communicating with tribunals do not constitute knowingly false statements.⁴⁵ Although determining whether a lawyer's statement was knowingly false is sometimes difficult, and lawyers accused of lying generally receive the benefit of the doubt, courts often discipline lawyers for a lack of candor. A lawyer's knowledge of falsity may be established through admissions by the lawyer, electronic or documentary evidence, or the statements or testimony of others. A lawyer's knowledge of falsity may also be inferred from circumstances.⁴⁶ Actual knowledge does not include information that a lawyer could have discovered through reasonable inquiry but did not,⁴⁷ but a lawyer may not turn a blind eye to the obvious. Feigned ignorance and willful blindness will not do. Lawyers must have a reasonable basis for believing statements that they make to tribunals.

What is a false statement for Rule 3.3(a)(1) purposes? Can a lawyer make a misleading statement of fact or law without violating the rule? There are differences, after all. "False and untrue mean contrary to fact; 'misleading' suggests something literally correct, but likely to direct the listener away from the truth."⁴⁸ Moreover, there is a reasoned argument to be made based on other provisions in the Model Rules that, if Rule 3.3(a)(1) were intended to...