Vol. 76 No. 3. Thinking Ethics: On the Duty of Candor to the Tribunal.

Author:By Hon. Steve Leben

Kansas Bar Journal

Ethics Columns.


Vol. 76 No. 3.

Thinking Ethics: On the Duty of Candor to the Tribunal

Vol. 76 No. 3 March 2007Thinking Ethics: On the Duty of Candor to the TribunalBy Hon. Steve Leben It seems simple enough. Lawyers have a duty of "candor toward the tribunal." Most of the time, it is simple enough. Yet a Westlaw search shows 16 published Kansas disciplinary cases from 2000 to date involving alleged violations of this rule. Perhaps a quick review might be helpful.

Model Rule 3.3 provides that a lawyer may not:

* make a false statement of material fact or law to a tribunal; * fail to disclose a material fact to a tribunal when disclosureis necessary to avoid assisting a criminal or fraudulent act by the client; * fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the client's position and not disclosed by the opposing lawyer; or * offer evidence that the lawyer knows to be false.

These duties continue to the end of the proceeding - and the rule specifically provides that the duty of candor trumps the normal rules of confidentiality. Thus, you may be forced to reveal confidential information if you would otherwise violate Rule 3.3.

An initial issue - what constitutes a "tribunal" - is resolved by the definitional sections of the Model Rules. Tribunals include "all courts and other adjudicatory bodies." In addition to courts, then, if you're appearing in front of an administrative agency operating in its adjudicatory role, it's a tribunal and the duty of candor applies. With that preliminary issue resolved, let's look at each of the provisions of Rule 3.3.

Its prohibition of making false statements of material fact or law, and of failing to disclose a material fact when that failure would assist the client in committing a criminal or fraudulent act, are straightforward. They may require some care in considering their application to specific facts, but the rule itself is not complicated.

The duty to disclose adverse law relates to "legal authority in the controlling jurisdiction," not to "controlling authorities." Thus, you may not leave out adverse decisions of the Kansas Court of Appeals on the theory that only decisions of the Kansas Supreme Court are truly "controlling."(fn1) And no distinction appears in the rule...

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