October 1998

Ethics And The Law
Ethical Responsibility of Candor to Judges

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Under the Rules of Professional Conduct (RPCs) we have duties as advocates to represent our clients. As guardians of the law we also have a duty to maintain the integrity of the legal system and of the legal profession, a duty which both complements and sometimes transcends our ethical duties to our clients. This article looks at our ethical duty as advocates to be candid with judges.

In our practices we tend to think of our duties to our clients as our preeminent ethical duties. We often forget that we also have duties to maintain the integrity of the legal system and of the legal profession. Our duty of candor to judges sometimes conflicts with our duty of maintaining our client's confidences and secrets. The ethical rules and interpretations, particularly in the area of criminal law practice, reflect that conflict and tension between two fundamental, but at times irreconcilable, ethical principles.

Unlike in some legal systems where judges independently investigate facts, our judges rely on us to bring them the facts. At the same time, our duty to maintain the confidences and secrets of our clients is a cornerstone of building trust and communication with our clients. If clients cannot trust us to keep information confidential, they will not disclose confidences and secrets to us. Without those confidences and secrets, however, we cannot competently serve our clients.

Fulfillment of our conflicting duties of candor and confidentiality ultimately determines whether our profession and our system of justice will survive. Failures in the duty of candor causes judges and others in the legal profession to lose respect for the noncandid lawyer and greatly lessens the lawyer's future effectiveness. Failures in the duty of confidentiality causes clients to not communicate essential information. Failures in both result in disrespect for, and loss of public trust in, the legal system and legal profession.^[1] But where is the line to be drawn between these conflicting duties?

RPC 3.3(a) sets out the basic rule of candor when we are acting as advocates, while the rest of RPC 3.3 elaborates on this basic duty. RPC 3.3 requires that we not knowingly:

• make a false statement of material fact or law to a tribunal;

• fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by our client (except where confidentiality rules prohibit disclosure);

• fail to disclose to a tribunal controlling legal authority known by us to be directly adverse to our client's position and not disclosed by opposing counsel;

• offer evidence that we know is false.

The term "tribunal" in RPC 3.3 is not defined. It would appear to include, however, not merely judges in courts, but also administrative law judges and others having similar judicial or quasi-judicial authority in trials and other proceedings analogous to fact-finding trials or administrative law proceedings. Our duties before nonadjudicative legislative or administrative proceedings are governed not by RPC 3.3, but by RPC 3.9.

Our RPC 3.3 duty of candor to the tribunal may clearly conflict with our RPC 1.6 duty to maintain our client's confidences and secrets. In Washington, our duty of confidentiality generally supersedes our duty of candor, and thus both RPC 3.3(a) and RPC 3.3(c) specifically exclude disclosures which would violate RPC 1.6. ABA Model RPC 3.3(a), from which our RPC 3.3(a) is partially derived, does not have the equivalent RPC 1.6 exception; instead the Model Rules make the duty of candor more absolute, specifically providing in Model RPC 3.3(b) that Model RPC 3.3(a) applies even if compliance requires disclosure of information otherwise protected by Model RPC 1.6.

The duty of candor applies to oral, written and documentary statements. It requires that when we speak on behalf of ourselves, such as when we make a statement in open court, or when we make an affidavit, we do so only if we know our assertion is true or we believe it is true after a reasonably diligent inquiry. If we sign a declaration on behalf of a client, we need to make sure we have full authority to do so from the client, not the client's spouse or other person, unless they are the client's authorized agent, and, in that case the declaration's signature should accurately reflect the facts.

In In re Dianna Lobrie (aka Carlson) (Washington State Bar News, June 1993 p. 34), a lawyer was reprimanded for presenting to a tribunal, in violation of RPC 3.3(a), a false written statement in her own protection order and for failing, in violation of RPC 3.3(f), to tell an ex parte commissioner that earlier the same day she had unsuccessfully sought an order from a different commissioner. Similarly, in In re Gimi Page (Washington State Bar News, November 1996, p. 42), a lawyer was reprimanded for presenting to a tribunal, in violation of RPC 3.3(a), "agreed" orders after she had changed them without opposing counsel's consent, while in In re Sherrie Bennett (Washington State Bar News, August 1998, p. 44), a lawyer was censured for violating RPC 3.3(a) by presenting to a court an "agreed" child support order after changing the order and placing opposing counsel's initials on the order without that counsel's consent.

If a person other than a client provides us evidence that we know is false, we must refuse to offer it. If our client provides evidence, or advises us he or she intends to provide evidence, which we know is false, however, we are in a much more difficult situation. Although we do not guarantee the accuracy of the information our client presents, we must make reasonable inquiry. While our client is entitled to confidentiality and to testify in a criminal case, our client is not entitled to make us participate in deceiving the court.

RPC 3.3(a) requires us to disclose controlling legal authority known to us which is not disclosed by opposing counsel. As a practical matter, "controlling" means that we must cite for Washington courts applicable Washington and U.S. Supreme Court case law, as well as applicable Washington statutes, regulations, ordinances, and so on. If the omitted authority is well-known or a leading case, the court as a practical matter may well assume we should have known the authority. If we are not sure whether we need to disclose an authority, the better course is to disclose and distinguish it since here, at least, there is no conflict with our duty of client confidentiality. If we disclose such authority because opposing counsel has not, we should make sure to very carefully explain to our client the reason we must do so; if we do not explain it, the client is likely to believe we did not represent him or her well and file a grievance against us.

The duty of candor to the tribunal is especially important in ex parte proceedings where there is no one to present an opposing view or expose deficiencies in proof. Thus, RPC 3.3(f), modeled on ABA Model RPC 3.3(d), specifically provides an expanded duty of candor for lawyers in those proceedings. It provides that a lawyer "shall inform the tribunal of all relevant facts known to the lawyer that should be disclosed to permit the tribunal to make an informed decision, whether or not the facts are adverse" (emphasis added). Our duty to the integrity of the system prevails over our duty to a client.

In 1997 a Washington lawyer was admonished for obtaining an ex parte default judgment while failing to tell the court commissioner about his frequent contacts with the defendant during the relevant time. Another Washington lawyer was admonished in 1997 for failing to disclose to the court when seeking approval of a minor's tort settlement his own receipt of a fee from an insurer. For a discussion of the duty of candor in ex parte proceedings, see Dennis, "The Model Rules and the Search for Truth: The Origins and Applications of Model Rule 3.3(d)," 8 Georgetown Journal of Legal Ethics 157 (1994).

Knowing/Reasonably Believing That Evidence is False

RPC 3.3(a) prohibits us from offering evidence if we know the evidence is false. The courts usually have a stringent standard for a lawyer's "knowing" before they impose an obligation to reveal client perjury. The lawyer is often required to have "a firm factual basis" for the belief that the client is committing perjury before any duty of disclosure arises. United States ex rel. Wilcox v. Johnson, 555 U.S. F.2d 115, 122 (3d Cir. 1977). As a result, it may only be the "unusual case" wherein the "knowing" standard of RPC 3.3 will be met. ABA Formal Opinion 87-353 (April 20, 1987).

RPC 3.3(e) provides that we "may" refuse to offer evidence that we reasonably believe is false. Thus, RPC 3.3(e) permits, but does not require, us to offer, or to refuse to offer, such evidence. This provision protects us from, among other things, being charged with incompetence or lack of diligence, or having disciplinary action taken, for offering, or deciding not to offer, such questionable evidence. Ultimately, this rule reflects that it is for the court to determine the probative value of the evidence.

The RPCs define "know" as denoting "actual knowledge of the fact in question" and go on to state that "A person's knowledge may be inferred from circumstances." The RPCs define "reasonably believes" as denoting "that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable." The RPCs define "reasonable" in this context as denoting "the conduct of a reasonably prudent and competent lawyer." As a practical matter, even though RPC 3.3(e) permits us to offer evidence that we reasonably believe is false, only rarely in a civil case would we ever want to offer such evidence if only because, if proven false, it reflects seriously and adversely on our own credibility as well as our client's case. In a criminal case, however, the issues are more complex.

RPC 3.3(c) requires that if we have offered material evidence which we come to know is false, we must promptly disclose this fact to the tribunal unless disclosure is prohibited by the RPC 1.6 confidentiality provisions; as noted above, ABA Model RPC 3.3 is absolute and does not contain such a confidentiality exception.

RPC 3.3(b) also clarifies that our basic RPC 3.3(a) duty of candor continues to the conclusion of a legal proceeding so that if we discover before a proceeding is concluded that we offered evidence that was false, we must correct it, but we do not have to do so if we do not discover it until after the proceeding is concluded. This does not, of course, answer the larger ethical issue of whether there may have been a miscarriage of justice based on that false evidence, and whether we can do anything to remedy that miscarriage without violating our other ethical duties, such as confidentiality, to our client.

RPC 3.3(d) attempts to deal with the conflict between our duty of candor to the tribunal and our duty of confidentiality to our client. Since ABA Model RPC 3.3 has a much more absolute duty of candor to judges and does not have the confidentiality exception of our RPC 3.3, the Model Rule has no counterpart to our RPC 3.3(d).

Our RPC 3.3(d) provides that if we have offered material evidence that we come to know is false, and disclosure of the falsity is prohibited by the confidentiality provisions of RPC 1.6, we "shall promptly make reasonable efforts to convince the client to consent to disclosure." Since clients do not have a legally enforceable ethical obligation to the legal system or profession, however, they may have little or no interest in consenting to such disclosure, especially since such nonconsent may well be in their interest and help them prevail in the legal proceeding. Accordingly, RPC 3.3(d) also provides that if the client refuses to permit the disclosure, we may seek to withdraw from the representation in accordance with RPC 1.15. Since a client who insists on maintaining falsity and who does not value truth is not one most of us would feel comfortable with, if we have such a client, we would be wise to consider a prompt withdrawal, for where we disagree with our client's disclosure wishes, withdrawal may well be our only option.

Very difficult and conflicting constitutional and ethical issues arise in the context of a criminal case, including the client's right to testify and to effective assistance of counsel, and the client's right to confidentiality. Our RPC 3.3(g), which has no parallel in the ABA Model RPCs on which our RPCs are partially modeled, provides that constitutional law defining the right of assistance of counsel in criminal cases may supersede the obligations otherwise imposed under our RPC 3.3.

The definitional distinctions and competing interests in criminal cases leave a fine and uncomfortable line to walk. Difficult situations arise where we do not "know," but perhaps just strongly suspect, that the evidence a client wants presented or has presented is false. Differing considerations arise depending on whether the suspected perjury is by the defendant or by a witness. Washington compounds the dilemma since our RPCs require us to honor the client's right to confidentiality under RPC 1.6, whereas the Model RPC 3.3 does not. We do know that a client does not have a constitutional right to offer perjured testimony. United States v. Curtis, 742 D.2d 1070 (7th Cir. 1984), cert. denied 475 U.S. 1064 (1986). A threat to withdraw and disclose to the court if the client insists on perjury does not deprive the client of constitutionally effective assistance of counsel. Nix v. Whiteside, 475 U.S. 157 (1986). If the client persists in intending to present false evidence, withdrawal should be considered. In State v. Berrysmith, 87 Wn. App. 268 (Div. I, 1997), the court upheld the withdrawal on the first day of trial of a criminal-defense lawyer, who raised with the court in camera his concern that his client intended to commit perjury, rather than requiring the lawyer to remain and allow the client to testify and see if perjury was committed.

If we cannot withdraw and our client refuses to testify truthfully, in a civil context we likely may disclose the falsity subject to RPC 1.6, and in most cases can likely effect a withdrawal. In a criminal context, however, commentators are not so certain of the correct course of conduct, with some suggesting that a client's constitutional rights to testify and to counsel, our duty of confidentiality to the client, and the severe repercussions to the client, may override our duty of candor to the court. State v. Berrysmith suggests that these rights and duties do not include, in effect, the right to require counsel to participate, albeit passively, in deceiving the court.

If we cannot withdraw in the criminal case, we are left with the dilemma of continuing to represent a perjuring client while risking disciplinary action and the loss of our reputation. We really have no good choices. The choices basically are to disclose the falsity or to stay silent. Although some courts have suggested that we have our client testify in a narrative fashion without direct examination by us and without us arguing the false testimony in closing argument, the Supreme Court's dictum in Nix, and the ABA, have disapproved this approach. Dictum in Nix suggests that if our client cannot be dissuaded from intended perjury, and we cannot withdraw, our duty of candor must prevail and we must disclose the intended perjury. But that case was not construing our RPCs and did not involve the explicit Washington provisions requiring the lawyer to maintain client confidences. In either a civil or criminal case, of course, the result of disclosure of the falsity of the evidence may be loss of the case, a possible perjury prosecution for the client, almost certainly a very angry client, and quite possibly a client-initiated malpractice suit and/or disciplinary grievance.

For an extended discussion of these difficult issues, see Ethical Problems Facing the Criminal Defense Lawyer (Uphof, editor; ABA, 1996), pp. 131-167, and authorities cited therein. More generally, see ABA Center for Professional Responsibility, Annotated Model Rules of Professional Conduct, Third Edition (1996), pages 307-323; Hazard & Hodes, The Law of Lawyering (Second Edition) §3.3:208 - §3.3:501, and the authorities cited at §3.3:220; Liskov, "Criminal Defendant Perjury: A Lawyer's Choice between Ethics, the Constitution, and the Truth," 28 New England Law Review 881 (1994); and ABA Formal Opinion 87-353 (April 20, 1987) — but remember in reviewing this opinion that while ABA Model RPC 3.3 specifically overrides the Model RPC confidentiality provisions, our RPC 3.3 explicitly retains the RPC 1.6 confidentiality provisions.

Candor to judges and maintaining the confidentiality of client confidences and secrets are both fundamental, but competing, ethical values in our system of law. Both are essential. RPC 3.3 tries to reconcile the two. In many cases, the reconciliation works. In some cases, however, particularly in the criminal law area, the two are irreconcilable. As lawyers we have the difficult, and at times impossible, task of satisfying both.