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Rule 3.3. Candor toward the Tribunal.

(a) A lawyer shall not knowinglyor recklessly:

(a)(1) make a false statement of fact or law to a tribunal or failto correct a false statement of material fact or law previously made to thetribunal by the lawyer; or

(a)(2) fail to disclose to the tribunallegal authority in the controlling jurisdiction directly adverse to theposition of the client and not disclosed by opposing counsel.

(b) A lawyer shall not offerevidence 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 lawyercomes to know of its falsity, the lawyer shall take reasonable remedialmeasures, including, if necessary, disclosure to the tribunal. A lawyer may refuseto offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(c) A lawyer who represents aclient in an adjudicative proceeding and who knows that a person intends toengage, is engaging, or has engaged in criminal or fraudulent conduct relatedto the proceeding shall take reasonable remedial measures, including, ifnecessary, disclosure to the tribunal.

(d) The duties stated inparagraphs (a) and (b) continue to the conclusion of the proceeding and applyeven if compliance requires disclosure of information otherwise protected byRule 1.6.

(e) In an ex parte proceeding, alawyer shall inform the tribunal of all material facts known to the lawyer thatwill enable the tribunal to make an informed decision, whether or not the factsare adverse.

Comment

[1] This Rule governs the conductof a lawyer who is representing a client in the proceedings of a tribunal. SeeRule 1.0(o) for the definition of "tribunal." It also applies whenthe lawyer is representing a client in an ancillary proceeding conductedpursuant to the tribunal?s adjudicative authority, such as a deposition. Thus,for example, paragraph (b) requires a lawyer to take reasonable remedialmeasures if the lawyer comes to know that a client who is testifying in adeposition has offered evidence that is false.

[2] This Rule sets forth thespecial duties of lawyers as officers of the court to avoid conduct thatundermines the integrity of the adjudicative process. A lawyer acting as an advocatein an adjudicative proceeding has an obligation to present the client's casewith persuasive force. Performance of that duty while maintaining confidencesof the client, however, is qualified by the advocate's duty of candor to thetribunal. Consequently, although a lawyer in an adversary proceeding is notrequired to present an impartial exposition of the law or to vouch for theevidence submitted in a cause, the lawyer must not allow the tribunal to bemisled by false statements of law or fact or evidence that the lawyer knows tobe false or is reckless with respect to its truth.

Representations by a Lawyer

[3] The Utah rule is differentfrom the ABA Model Rule. In In re Larsen,2016 UT 26, 379 P.3d 1209, the Utah Supreme Court held that the former rule?splain language required finding actual knowledge before an attorney could befound to have violated the rule, and that language in former Comment [3]permitted finding a violation on something less than actual knowledge. Theamendments to Rule 3.3(a) and to Comments [2], [4], [5], and [9], permitfinding a violation of the rule if an attorney recklessly, as defined in Rule1.0(l), makes a false statement of law or fact or fails to disclose controllingauthority. Former Comment [3] is stricken because the Utah Supreme Courtdisavowed it in Larsen and because itconflicts with the amendments to 3.3(a). Legal Argument

[4] Legal argument based on aknowingly or recklessly false representation of law constitutes dishonestytoward the tribunal. A lawyer is not required to make a disinterestedexposition of the law, but must recognize the existence of pertinent legalauthorities. Furthermore, as stated in paragraph (a)(2),an advocate has a duty to disclose directly adverse authority in thecontrolling jurisdiction that has not been disclosed by the opposing party. Theunderlying concept is that legal argument is a discussion seeking to determinethe legal premises properly applicable to the case.

Offering Evidence

[5] Paragraph (b) requires thatthe lawyer refuse to offer evidence that the lawyer knows to be false,regardless of the client's wishes. This duty is premised on the lawyer?sobligation as an officer of the court to prevent the trier of fact from beingmisled by false evidence. A lawyer does not violate this Rule if the lawyeroffers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that theclient intends to testify falsely or wants the lawyer to introduce falseevidence, the lawyer should seek to persuade the client that the evidenceshould not be offered. If the persuasion is ineffective and the lawyercontinues to represent the client, the lawyer must refuse to offer the falseevidence. If only a portion of a witness?s testimony will be false, the lawyermay call the witness to testify but may not elicit or otherwise permit thewitness to present the testimony that the lawyer knows is false.

[7] The duties stated inparagraphs (a) and (b) apply to all lawyers, including defense counsel incriminal cases. In some jurisdictions, however, courts have required counsel topresent the accused as a witness or to give a narrative statement if theaccused so desires, even if counsel knows that the testimony or statement willbe false. The obligation of the advocate under the Rules of ProfessionalConduct is subordinate to such requirements. See also Comment [9].

[8] The prohibition againstoffering false evidence only applies if the lawyer knows that the evidence isfalse. A lawyer?s reasonable belief that evidence is false does not precludeits presentation to the trier of fact. A lawyer?s knowledge that evidence isfalse, however, can be inferred from the circumstances. See Rule 1.0(f). Thus,although a lawyer should resolve doubts about the veracity of testimony orother evidence in favor of the client, the lawyer cannot ignore an obviousfalsehood.

[9] Although paragraph (b) onlyprohibits a lawyer from offering evidence the lawyer knows to be false, itpermits the lawyer to refuse to offer testimony or other proof that the lawyerreasonably believes is false. Offering such proof may reflect adversely on thelawyer?s ability to discriminate in the quality of evidence and thus impair thelawyer?s effectiveness as an advocate. Because of the special protectionshistorically provided criminal defendants, however, this Rule does not permit alawyer to refuse to offer the testimony of such a client where the lawyerreasonably believes but does not know that the testimony will be false. Unlessthe lawyer knows the testimony will be false, the lawyer must honor theclient?s decision to testify. See also Comment [7].

Remedial Measures

[10] Having offered evidence inthe belief that it was true, a lawyer may subsequentlycome to know that the evidence is false. Or, a lawyer may be surprised when thelawyer?s client, or another witness called by the lawyer, offers testimony thelawyer knows to be false, either during the lawyer?s direct examination or inresponse to cross-examination by the opposing lawyer. In such situations or ifthe lawyer knows of the falsity of testimony elicited from the client during adeposition, the lawyer must take reasonable remedial measures. In suchsituations, the advocate's proper course is to remonstrate with the clientconfidentially, advise the client of the lawyer?s duty of candor to thetribunal and seek the client?s cooperation with respect to the withdrawal orcorrection of the false statements or evidence. If that fails, the advocatemust take further remedial action. If withdrawal from the representation is notpermitted or will not undo the effect of the false evidence, the advocate mustmake such disclosure to the tribunal as is reasonably necessary to remedy thesituation, even if doing so requires the lawyer to reveal information thatotherwise would be protected by Rule 1.6. It is for the tribunal then todetermine what should be done-making a statement about the matter to the trierof fact, ordering a mistrial or perhaps nothing.

[11] The disclosure of a client?sfalse testimony can result in grave consequences to the client, including notonly a sense of betrayal but also loss of the case and perhaps a prosecutionfor perjury. But the alternative is that the lawyer cooperatein deceiving the court, thereby subverting the truth-finding process which theadversary system is designed to implement. See Rule 1.2(d). Furthermore, unlessit is clearly understood that the lawyer will act upon the duty to disclose theexistence of false evidence, the client can simply reject the lawyer?s adviceto reveal the false evidence and insist that the lawyer keep silent. Thus theclient could in effect coerce the lawyer into being a party to fraud on thecourt.

Preserving Integrity ofAdjudicative Process

[12] Lawyers have a specialobligation to protect a tribunal against criminal or fraudulent conduct thatundermines the integrity of the adjudicative process, such as bribing,intimidating or otherwise unlawfully communicating with a witness, juror, courtofficial or other participant in the proceeding, unlawfully destroying orconcealing documents or other evidence or failing to disclose information tothe tribunal when required by law to do so. Thus, paragraph (b) requires alawyer to take reasonable remedial measures, including disclosure if necessary,whenever the lawyer knows that a person, including the lawyer?s client, intendsto engage, is engaging, or has engaged in criminal or fraudulent conductrelated to the proceeding.

Duration of Obligation

[13] A practical time limit onthe obligation to rectify false evidence or false statements of law and facthas to be established. The conclusion of the proceeding is a reasonablydefinite point for the termination of the obligation. A proceeding hasconcluded within the meaning of this Rule when a final judgment in theproceeding has been affirmed on appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate hasthe limited responsibility of presenting one side of the matters that atribunal should consider in reaching a decision; the conflicting position isexpected to be presented by the opposing party. However, in any ex parteproceeding, such as an application for a temporary restraining order, there isno balance of presentation by opposing advocates. The object of an ex parteproceeding is nevertheless to yield a substantially just result. The judge hasan affirmative responsibility to accord the absent party just consideration.The lawyer for the represented party has the correlative dutyto make disclosures of material facts known to the lawyer and that the lawyerreasonably believes are necessary to an informed decision.

 

EffectiveNovember 1, 2017