Q: Dear Ethics Lawyer, In a confidential interview in connection with a civil case, one of my client’s corporate officers told me that she did not remember if she became aware of a critical accounting issue at the company before or after a sale of stock in question. At trial, you do not ask her about the matter on direct, but on cross examination by the opposing lawyer she testifies definitively that she is certain the issue only came to light after the stock sale. Do I have an obligation to disclose the client’s earlier statement to the court or the opponent? What do I do?
A: Model Rule 3.3 protects the integrity of matters before a “tribunal,” barring a lawyer from offering evidence the lawyer knows to be false, and requiring the lawyer to take “reasonable remedial measures” if the lawyer, the lawyer’s client or a witness offered by the lawyer has offered “material” evidence the lawyer has come to know is false. In this situation, the testimony was by the lawyer’s client and is clearly material. Thus, the remaining question is whether the lawyer “knows” the testimony to be “false.” Model Rule 1.0(f) states that “knowingly” denotes “actual knowledge of the fact in question.”
The prior seemingly inconsistent statement is an indication of falsity, but could there be another explanation for the change in her story? Before taking any action, the best practice would be to seek or take advantage of a recess to ask the client about the change in her answer – maybe something in the course of the trial or otherwise has refreshed or jogged her memory in a different direction.
If after that conversation, the lawyer is convinced that the testimony is false, the lawyer’s duty to take “reasonable remedial measures” should begin with efforts to remonstrate with the client to agree to correct her own testimony, pointing out both the potential consequences of false testimony and the lawyer’s obligations. If remonstration is unsuccessful, the lawyer, if necessary to correct the false evidence, must disclose the facts to the tribunal. Rule 3.3(c) makes it clear that this is required notwithstanding the duty of confidentiality under Rule 1.6. Note: Rule 3.3(c) is applied differently to criminal defendants; in many jurisdictions the expected false testimony of a criminal defendant may be offered in another way, such as by narrative rather than specific questions posed by the lawyer.