Q: Dear Ethics Lawyer, I am a civil trial lawyer. I have a question about Rule 3.3 Candor to the Tribunal, which says that a lawyer shall not “knowingly” offer evidence that the lawyer knows to be false. On several occasions I have put a client witness on the stand whose testimony seems implausible in some regard, but I couldn’t prove it to be false, or have certainty that it was false. It makes me uncomfortable, but then again, sometimes the truth is stranger than fiction. Where is the line here? When do I “know” something to be false rather than just have a doubt or question about it?
A: According to Model Rule 1.0(f) “knowingly,” “known,” or “knows” denotes “actual knowledge” of the fact in question, not just a question about it, but a person’s knowledge may be “inferred from circumstances.” Courts have said that this standard requires “objective proof” or “objective circumstances firmly rooted in fact” of falsity for there to be knowledge. E.g., United States v. Stewart, 931 F.Supp.2d 1199 (S.D. Fla. 2013) (without objective proof client lying, lawyer possessed no actual knowledge); Commonwealth v. Leiva, 146 N.E.3d 1093 (Mass. 2020). The standard is what the lawyer does or did know, not what the lawyer should or should have known. The “inferred from circumstances” part of the definition does not lower the “actual knowledge” standard, it just means that direct evidence of the lawyer’s actual knowledge is not required, the surrounding circumstances can establish that the lawyer had actual knowledge.
In your calculus during a case, consider the effect of the objective facts that you are aware of (and perhaps question your client about them). In addition, do not try to avoid knowledge; there are numerous cases that establish that a lawyer may not purposely avoid acquiring actual knowledge, by ignoring or consciously avoiding evidence of falsity. For an interesting discussion of this concept, albeit somewhat inconclusive, see, e.g., Bennett L. Gershman, Rudolph Giuliani and the Ethics of Bullshit, 57 Duq. L. Rev. 293 (219).