Kansas Bar Journal
Vol. 75 No. 6.
Thinking Ethics: Remedying Fraud on the Court
Vol. 75 No. 6 June 2006Thinking Ethics: Remedying Fraud on the CourtBy Professor Sheila Reynolds In order to react immediately and properly when the issue arises - as it inevitably will - lawyers who litigate in any forum must have a clear understanding of their duty to remedy either false evidence they have unwittingly offered or client fraud on the tribunal. For example, a prosecutor spends two hours preparing a key prosecution witness to testify at trial. On cross-examination, when the witness is asked if he has talked to anyone about his testimony, the witness testifies he has not. The lawyer listening to the witness he has called knows that the witness has just lied to the court. Or a client in a divorce action submits to the court, through his lawyer, a domestic relations affidavit that omits rental income, then later advises his lawyer that he receives $1,500 a month from a tenant. What must the lawyer do?
When such situations arise, the obligation of lawyers to advocate for their clients conflicts with their obligations as officers of the court not to offer or assist in presenting false evidence. The Kansas Rules of Professional Conduct resolve such conflicts in favor of the duty of candor to the court, requiring lawyers to take measures to remedy the fact that the judge or jury has received false evidence. In effect, the duty of candor to the court (Rule 3.3) creates another exception to the duty of protecting client confidences (Rule 1.6) because it provides that the candor to the court duties "apply even if compliance requires disclosure of information otherwise protected by Rule 1.6." See 3.3(b).
A lawyer confronted with client fraud may think that the solution is to withdraw, but as the American Bar Association (ABA) noted in Ethics Opinion 87-353, once false evidence is before the trier of fact, withdrawal of counsel will seldom "remedy" the situation. Instead, a lawyer should first request a recess and privately attempt to convince the witness to correct the testimony. When the client has submitted false documents in the litigation, the lawyer may be able to assist in withdrawal of the documents. But if the client will not cooperate in remedying the falsity, the lawyer has an ethical obligation to...