Mcle Article a Trial Lawyer's Guide to Rule 3.3
| Jurisdiction | California,United States |
| Author | By Robert L. Kehr |
| Citation | Vol. 33 No. 1 |
| Publication year | 2020 |
By Robert L. Kehr
Robert L. Kehr of Kehr, Schiff, Crane & Cohen, LLP in Los Angeles, teaches lectures and writes on legal ethics and professional responsibility. He has served on numerous State and local committees on professional conduct rules.
Perhaps the one piece of information common to all trial lawyers is that they are officers of the court obligated to be honest with the courts. This common law duty was codified in California's original 1872 Civil Code, and now is located at Business and Professions Code section 6068: "It is the duty of an attorney to do all of the following: ... (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law."
This statutory language is evocative and emphatic but not specific. Some of the resulting uncertainties have been addressed by complementary Rules of Professional Conduct. For many years this was accomplished through rule 5-200, which added three details to the statutory language. These were prohibitions on intentionally misquoting any book, statute or decision, intentionally citing as authority any decision that has been overruled or statute that has been repealed or declared unconstitutional, or asserting personal knowledge except when testifying as a witness. These particulars might have been inherent in the general statutory principle, and they might have been apparent to many lawyers. However, including them in rule 5-200 supplied a helpful reminder to lawyers and avoided the need to extract these specifics from the all-purpose statutory prohibition.
California's new Rules of Professional Conduct went into effect on November 1, 2018 and, among many other changes, replaced prior rule 5-200 with new rule 3.3. The new rule thoroughly revises and materially expands the trial conduct standards to which California lawyers have been accustomed. The purpose of this article is to alert practitioners to what might be unexpected ethical obligations.
What Remains from the Former Rule?
Each of the three rule 5-200 details remains in California's new rules. The prohibition on false statements now is found in rule 3.3(a)(1), and the prohibition on misquoting now is in rule 3.3(a)(2). The bar on asserting personal knowledge has been moved to rule 3.4 (titled: "Fairness to Opposing Party and Counsel"). In its new location, this element is restated somewhat: "A lawyer shall not: ... (g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state personal opinion as to the guilt of innocence of an accused." While these three aspects of courtroom honesty continue, rule 3.3 significantly changes other standards of lawyer conduct. The balance of this article focuses on those important changes.
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Rule 3.3 is definite that a lawyer is not subject to disciplinary criticism for inadvertent misstatements to a tribunal. Paragraph (a)(1) bars lawyers from "knowingly* [making] a false statement of fact or law," paragraph (a) (2) from knowingly misquoting, and paragraph (a)(3) from offering "evidence the lawyer knows* to be false." (Italics added; the asterisk indicates a word or phrase that is defined in rule 1.0.1.) This knowledge standard appears again in paragraph (b) with respect to another person's intended crime or fraud.
The knowledge standard, however, creates a new risk for lawyers because of how the term is defined in rule 1.0.1. (Rule 1.0.1 is the location for all defined terms used in more than one rule.) The definition begins as follows: "(f) 'Knowingly,' 'known,' or 'knows' means actual knowledge of the fact in question." This might lead some lawyers to think it possible to avoid complying with rule 3.3 (and other rules in which there is a knowledge standard) by dissembling about the possession of knowledge. However, a lawyer's protestations of good faith might not work because the rule 1.0.1(f) definition adds: "A person's* knowledge may be inferred from circumstances."
Willful blindness is not acceptable under...
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