No Duty to Correct False Deposition Testimony, Says State Bar

• Pages: 7-7
• Date: 01 July 2023
• Author: William H. Newman
• Subject Matter: Civil Law

Published in Litigation News Volume 48, Number 4, Summer 2 023. © 2023 by the Amer ican Bar Association . Reproduced with pe rmission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in an y

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n attorney has no duty to cor-

rect a client who lies while

testifying at a deposi-

tion, according to a state

bar’s ethics opinion.

Notwithstanding, the ethics commit-

tee simultaneously emphasized that

the state’s ethics rules prohibit a law-

yer from using false testimony in sup-

port of his or her client’s case. ABA

Litigation Section leaders believe that

this situation may ultimately require the

attorney’s withdrawal.

In Opinion No. 692, the State Bar of

Texas Professional Ethics Committee

considered the ethical obligations of

an attorney in a lawsuit arising from a

car accident. The deponent conf‌ided

to his lawyer before d eposition that

his eyes were on his phon e when the

accident occurred. Still, the deponent

maintained th e accident was not his

fault. The law yer advised the depo-

nent to testify ho nestly. Despite this,

the deponent lied when examined

about where he wa s looking dur-

ing the accident . During a break, the

attorney privately di rected the depo-

nent to admit he mis spoke and to tell

the truth instead . But the deponent

refused and in structed counsel not to

say anything.

The committee f‌irst considered

whether these facts implicated Texa s

Disciplinary Rule 3.03’s ethical prohi -

bition on an attorn ey making a false

statement. It d ecided that rule did not

apply becau se only the deponent lied

and not the attorn ey. It then consid-

ered whether the r ule’s ethical prohi-

bition on using fa lse evidence applied.

The committee d ecided that this

rule also did not a pply so long as the

attorney did not use th e testimony,

such as by submitti ng it in support of

a summary ju dgment motion.

The committee exp ressly did not

address whethe r Texas Disciplinar y

Rule 3.03(a)(1) abo ut false statements

made before a trib unal applied to

deposition testimony. It acknowledged

No Duty to Correct False Deposition

Testimony, Says State Bar

that statement s made at a deposition

are not made befo re a tribunal, but it

also recognized that tribunals authorize

depositions . But it considered the issue

irrelevant beca use it decided, even if

that rule applie d, the facts did not state

a violation.

The committee considered at length

whether these fac ts violated Rule

3.03(a)(2), which prohibit s assisting

a criminal or fra udulent act. It noted

that there has bee n a dierence of

opinion on the su bject by other eth-

ics committee s. On the one hand, the

ABA Standing Co mmittee on Ethics

and Professional Responsibility issued

Formal Ethics Op inion 93-376, which

states that once a law yer learns his

or her client com mitted perjury, his

or her continued representation

“without rectif‌i cation or disclosure

would assist the cl ient in commit-

ting a crime or fra ud.. ..” On the other

hand, the Philadelphia Bar Association

Professional Guidance C ommittee

issued Ethics O pinion 95-3, conclud-

ing that represen tation of a client who

committed perj ury does not constitute

“assistance” of perjury.

The committee determined that

remaining sile nt after a client’s lie did

not “assist” a c rime or fraud. It applied

the def‌inition of “as sistance” from

criminal laws, which requires “arma-

tive and knowing par ticipation.” And it

reasoned that the “passive witnessing”

of perjury is no t an “armative” act.

The committee a lso acknowledged

that ABA Model R ule of Professional

Conduct 3.3(b) specif‌ically requires

attorneys to correct th eir clients’ false

statements . But it observed that the

Texas Disciplinary Rul es do not have

the same requi rement, and it did not

read that require ment into those rules.

The committee emphasized that the

attorney was obligated to refrain from

using the false testimony in a motion

or at trial. It also made clear that the

attorney was obligated to correct the

record if the testimony arose on direct

examination because that would con-

stitute the attorney’s own oering of

false evidence.

Litigation Section leaders agree that

an attorney who witnesses a client lying

at a deposition should immediately urge

the deponent to tell the truth. “Taking

a break, talking to the client, and get-

ting the record corrected” is a good

idea, suggests John M. Barkett, Miami,

FL, cochair of the Section’s Ethics &

Professionalism Committee.

In addition, a lawyer in that situation

may need to avoid the appearance of

supporting the false testimony. “Even

if you were planning on cross-examin-

ing the witness, the safer course is to

stand silent,” counsels Sherilyn Pastor,

Newark, NJ, cochair of the Section’s

Trial Evidence Committee. She notes

that, although the lawyer may ethically

“defend on unrelated subjects,” he or

she “may be trying to split hairs later”

when distinguishing his or her ques-

tions from subjects that are o-limits.

If the client refuses to follow the

lawyer’s advice, Section leaders believe

the lawyer may need to withdraw from

the matter, despite the committee’s

opinion. Since the lawyer cannot use

the lie in support of the client’s case,

“the client’s interest and the lawyer’s

interest begin to diverge,” explains

Warrington Parker, San Francisco,

CA, cochair of the Section’s Criminal

Litigation Committee.

RESOURCES

Dennis Rendleman, “What to Do When

Your Client Lies,” You rABA: Ethics In View

(Sept. 2019).

Char les S. Fax, “To Tell The Truth,” 36

Litigation News 2 (Win ter 2011).

By William H. Newman , Litigation News Associate Editor

SUMMER 2 023 • VOL. 48 NO. 4

7 | A BA LITIGATION SECTION

ETHICS STRU GGLES IN THE LEGAL WORLD