I have recently learned that the The New York State Bar Association has issued an opinion similar to a NYCLA opinion which I discussed recently. In Ethics Opinion 837, issued March 16, 2010, with the topic heading of Confronting false evidence and false testimony, the New York State Bar Association Committee On Professional Ethics was confronted with this scenario: A client gave sworn testimony at an arbitration proceeding concerning a document. The document was admitted into evidence based upon the testimony. The client also testified concerning the client’s actions in preparing the document and submitting the document to the client’s employer. In a later conversation between client and counsel, the client informed counsel that the document was forged. Counsel thereby came to know that the document and some of the client’s testimony concerning the document were false.
What to do? The Conclusion the committee came to under the new rules was that “Rule 3.3 [set forth below – LJS] requires an attorney to take reasonable remedial measures even if doing so would entail the disclosure to a tribunal of client confidential information otherwise protected by Rule 1.6. [set forth below – LJS] However, if reasonable remedial measures less harmful to the client than disclosure are available, then disclosure to the tribunal is not “necessary” to remedy the falsehood and the attorney must use measures short of disclosure”
They also gave guidance by approving the solution of informing “the tribunal that the specific item of evidence and the related testimony are being withdrawn, but … not expressly make any statement regarding the truth or falsity of the withdrawn items.” They then reminded us that “before acting unilaterally, [counsel] should bring the issue of false evidence to the client’s attention, and seek the client’s cooperation in taking remedial action.”
In the digest to the opinion it said that “Rule 3.3 of the New York Rules of Professional Conduct requires an attorney to disclose client confidential information to a tribunal if discloser is necessary to remedy false evidence or testimony. The exception in former DR 7-102(B)(1) exempting discloser of information protected as a client “confidence or secret” no longer exists.”
Thus I ask myself, does an attorney have an obligation to a client to advise them of this change in the rules? I do this because most if not all clients will assume that anything that is said to an attorney will be kept confidential. As many attorneys will err on the side of caution, I think that it would be best to let the client know that if I learn that you have lied at a deposition, trial, arbitration or in providing discovery and it is important (another word for material) I will have to let the Court/Arbitrator know about it one way or another and with or without your help. But if I can do so without specifically telling the Court/Arbitrator that you lied and what the truth is, I will try to do that. Any thoughts on this task will be appreciated.
RULE 3.3: Conduct Before a Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.
RULE 1.6: Confidentiality of Information
(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.