II. Lawyers' Duty of Candor and the Problem of False Testimony

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

II. Lawyers' Duty of Candor and the Problem of False Testimony

The Model Rules of Professional Conduct address false testimony both prospectively and retrospectively. In other words, what are lawyers' obligations preceding depositions, hearings, or trials when they either know or reasonably believe that clients or witnesses intend to testify falsely, and what are lawyers' duties when confronted by real-time or actual false testimony, as where clients or witnesses unexpectedly lie in depositions or during trial?

A. Applicable Rules of Professional Conduct

The problem of false testimony is principally governed by Model Rules 3.3 and 3.4, titled "Candor Toward the Tribunal" and "Fairness to Opposing Party and Counsel," respectively. Both rules obviously concern lawyers' roles as advocates.⁴ Model Rule 3.3 provides in pertinent part:

(a) A lawyer shall not knowingly:
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(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a 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 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.⁵

A lawyer violates Rule 3.3(a)(3) merely by offering evidence she knows to be false; she need not have encouraged or participated in its fabrication.⁶

Continuing, Model Rule 3.4(b) provides in part that a lawyer shall not "falsify evidence" or "counsel or assist a witness to testify falsely."⁷ If lawyers cannot offer unexpected false testimony and must, in fact, disclose clients' and witnesses' perjury in accordance with Rule 3.3, then it follows that they may not falsify testimony themselves or allow or encourage witnesses to testify falsely. This is true even where the witness concocts the false testimony and the lawyer goes along.⁸ Moreover, a lawyer violates Rule 3.4(b) simply by advising or counseling a witness to testify falsely—the witness does not have to actually testify falsely to perfect the violation.⁹Although Model Rule 3.4(b) rule refers only to witnesses, it applies equally to cases in which lawyers assist or counsel clients to testify falsely.¹⁰ The terms are not exclusive; clients may be witnesses, after all.

Rule 3.4(b) concerns most commonly surface in connection with lawyers' preparation of witnesses to testify, often described as witness "coaching." Although lawyers clearly cannot in their preparatory efforts coerce, induce, or persuade witnesses to testify falsely, it should be clear that there is nothing unethical about lawyers helping witnesses articulate, phrase, rephrase, shape, or polish truthful testimony.¹¹ Lawyers may rehearse testimony with witnesses and suggest word choices.¹² In a criminal case, for example, the Wyoming Supreme Court was unbothered by a defense lawyer's instruction to his client to describe the client's use of a knife to "cut" rather than "stab" the victim.¹³ Moreover, lawyers are permitted to discuss facts with witnesses, as well as the application of law to facts. Lawyers are not required to passively accept witnesses' characterizations or recollections of events or information. Lawyers may discuss with witnesses other evidence or testimony that has been or will be offered. Indeed, lawyers may attempt to persuade witnesses, "even aggressively," that the witnesses' versions of fact situations are inaccurate or incomplete.¹⁴ Lawyers are therefore entitled to implicitly alter what a witness would have said absent a discussion with the lawyer, as long as the witness's testimony remains truthful.¹⁵ On the other side of the coin, witnesses are entitled to reject lawyers' suggested word choices and urged factual analyses or interpretations. Lawyers must respect witnesses' right to disagree and defer to witnesses who insist that they cannot truthfully testify in the fashion or manner the lawyer advocates. In short, courts acknowledge that lawyers are obligated to prepare witnesses to testify.¹⁶ This obligation is generally expressed as an aspect of lawyers' related duties of competence and diligence.

Courts consider Rule 3.3 and 3.4(b) violations to be extremely serious because knowingly offering false testimony is antithetical to lawyers' oaths and to the legal profession's ideals,¹⁷ and strikes at the very heart of the administration of justice.¹⁸ A lawyer may be found to have violated either rule even where the false testimony did not affect the outcome of the proceedings.¹⁹ The fact that the false testimony was immaterial may mitigate any sanction to be imposed, and perhaps even prevent the imposition of any sanction whatsoever, but it does not erase the violation.

Although it is not apparent from the text of either Model Rule 3.3(a)(3) or Model Rule 3.4(b), both rules sometimes do allow lawyers to elicit false testimony from witnesses as long as that testimony is not intended to mislead the trier of fact. This is consistent with the general recognition that lawyers may offer false evidence for the purpose of establishing its falsity.²⁰ In the testimonial context, for example, a lawyer might elicit false testimony from an opposing witness for the purpose of later demonstrating its falsity to discredit the witness.²¹ Requiring premature disclosure could in some circumstances allow the witness to explain away the false testimony or reframe it to make it seem plausible.²² Effective cross-examination may pivot on this exact tactic.

Furthermore, the fact that a client or witness may testify falsely on one subject does not preclude a lawyer from offering the client's or witness's testimony altogether. For example, a lawyer who knows that a witness will testify falsely on Subject A may nonetheless call the witness to testify truthfully about Subject B without violating Rules 3.3(a)(3), 3.3(b), or 3.4(b).²³ Understandably, the lawyer cannot question the witness with respect to Subject A.

Importantly, Model Rules 3.3(a)(3) and 3.4(b) refer to false testimony—not perjury. The crime of perjury typically requires that the subject testimony be (1) will-fully false; (2) material to the outcome of the matter; and (3) not earlier discoverable through reasonable diligence. Model Rules 3.3(a)(3) and 3.4(b) plainly incorporate different elements. Thus, and by way of example, a lawyer may be held to violate Rules 3.3(a)(3) or 3.4(b) even when a client's false testimony is not material to the outcome of the matter.²⁴ A lawyer may be held to have violated these rules even though the witness was never criminally charged or convicted in connection with the false testimony.

Unlike perjured testimony, which must be willfully false, testimony may be false for purposes of Rules 3.3(a)(3) and 3.4(b) even if the witness is mistaken rather than lying.²⁵ This application may strike some lawyers as odd, because both rules—and especially Rule 3.4(b)—seem to focus on deliberately false testimony rather than innocently mistaken testimony. But a statement's falsity under either rule does not depend on whether it is morally objectionable. A statement is false if it is contrary to fact, incorrect, or groundless; falsity does not depend upon or require dishonesty or intent to mislead. And because even innocent misstatements may affect a court's decision or the course of litigation, preventing and correcting mistaken testimony is an important goal. When evaluating falsity under Model Rules 3.3(a)(3) and 3.4(b), then, a witness's state of mind is irrelevant; it is the lawyer's knowledge that counts. Fortunately for lawyers, this broad interpretation of falsity remains reasonably bounded. For witnesses' testimony to be false under Model Rules 3.3(a)(3) and 3.4(b), it must be objectively erroneous or untrue; two witnesses' disagreement on affairs or events, for example, does not render either's testimony false. Additionally, a witness's testimony may change by virtue of new information learned between the first time the witness testified and the second, as where a witness is first deposed and later testifies at trial, or where a witness testifies in multiple proceedings. The fact that the witness testifies differently the second time as a result of the new information does not render either round of testimony false under these rules.²⁶

In obvious contrast, Model Rule 3.3(b) specifically refers to "criminal or fraudulent conduct."²⁷ As a result, Model Rule 3.3(b) applies only where a witness intends to commit perjury or testify falsely with intent to deceive or actually does so. While well-meaning but mistaken testimony by a witness may have a negative effect on a case, and capable advocates will attempt to prevent or correct inaccurate testimony, such errors do not implicate lawyers' duties under Model Rule 3.3(b).²⁸

Finally, it is critical to recognize that Model Rule 3.3 speaks of tribunals and adjudicative proceedings rather than courts, and Rule 3.4 is silent as to the forum. Thus, while reported cases on false testimony typically arise out of court proceedings, lawyers' duties are not so limited. Lawyers must not offer false testimony, cannot counsel or assist witnesses to testify falsely, and must correct material false testimony offered by clients and their witnesses in arbitrations and other types of judicial and quasi-judicial proceedings.²⁹ Lawyers' duties apply to false testimony given in depositions, just as they do to false testimony presented before a tribunal.³⁰ This should not surprise, since depositions are conducted pursuant to tribunals' adjudicative author-ity,³¹ and deposition testimony is...