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Rule 3.3. Candortoward the Tribunal.

(a)A lawyer shall not knowingly or recklessly:

(a)(1) make a false statement of fact orlaw to a tribunal or fail to correct a false statement of material fact or lawpreviously made to the tribunal by the lawyer; or

(a)(2) fail todisclose to the tribunal legal authority in the controlling jurisdictiondirectly adverse to the position of the client and not disclosed by opposingcounsel.

(b)A lawyer shall not offer evidence that the lawyer knows to be false. If a lawyer,the lawyer?s client or a witness called by the lawyer has offered materialevidence and the lawyer comes to know of its falsity, the lawyer shall takereasonable remedial measures, including, if necessary, disclosure to thetribunal. A lawyer may refuse to offer evidence, other than the testimony of adefendant in a criminal matter, that the lawyerreasonably believes is false.

(c)A lawyer who represents a client in an adjudicative proceeding and who knowsthat a person intends to engage, is engaging or hasengaged in criminal or fraudulent conduct related to the proceeding shall takereasonable remedial measures, including, if necessary, disclosure to thetribunal.

(d)The duties stated in paragraphs (a) and (b) continue to the conclusion of theproceeding and apply even if compliance requires disclosure of informationotherwise protected by Rule 1.6.

(e)In an ex parte proceeding, a lawyer shall inform the tribunal of all materialfacts known to the lawyer that will enable the tribunal to make an informeddecision, whether or not the facts are adverse.

Comment

[1]This Rule governs the conduct of a lawyer who is representing a client in theproceedings of a tribunal. See Rule 1.0(q) for the definition of"tribunal." It also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to thetribunal?s adjudicative authority, such as a deposition. Thus, for example,paragraph (a)(3) requires a lawyer to take reasonable remedial measures if thelawyer comes to know that a client who is testifying in a deposition hasoffered evidence that is false or is reckless with respect to its truth.

[2] This Rule sets forth the special duties of lawyers as officersof the court to avoid conduct that undermines the integrity of the adjudicativeprocess. A lawyer acting as an advocate in an adjudicative proceeding has anobligation to present the client's case with persuasive force. Performance ofthat duty while maintaining confidences of the client, however, is qualified bythe advocate's duty of candor to the tribunal. Consequently, although a lawyerin an adversary proceeding is not required to present an impartial expositionof the law or to vouch for the evidence submitted in a cause, the lawyer mustnot allow the tribunal to be misled by false statements of law or fact orevidence that the lawyer knows to be false.

Representations by a Lawyer

[3]The Utah rule is different from the ABA Model Rule.? In Inre Larsen, 2016 UT 26, 379 P.3d 1209, the Utah Supreme Court held that theformer rule?s plain language required finding actual knowledge before anattorney could be found to have violated the rule, and that language in formerComment [3] permitted finding a violation on something less than actualknowledge.? 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(n), makes a false statement of law or fact or fails to disclose controllingauthority.

Legal Argument

[4]Legal argument based on a knowingly or recklessly false representation of lawconstitutes dishonesty toward the tribunal. A lawyer is not required to make adisinterested exposition of the law, but must recognize the existence ofpertinent legal authorities. Furthermore, as stated inparagraph (a)(2), an advocate has a duty to disclosedirectly adverse authority in the controlling jurisdiction that has not beendisclosed by the opposing party. The underlying concept is that legal argumentis a discussion seeking to determine the legal premises properly applicable tothe case.

Offering Evidence

[5] Paragraph (b) requires that the lawyer refuse to offer evidence that thelawyer knows to be false, regardless of the client's wishes. This duty ispremised on the lawyer?s obligation as an officer of the court to prevent thetrier of fact from being misled by false evidence. A lawyer does not violatethis Rule if the lawyer offers the evidence for the purpose of establishing itsfalsity.

[6] If a lawyer knows that the client intends to testify falselyor wants the lawyer to introduce false evidence, the lawyer should seek topersuade the client that the evidence should not be offered. If the persuasionis ineffective and the lawyer continues to represent the client, the lawyermust refuse to offer the false evidence. If only a portion of a witness?stestimony will be false, the lawyer may call the witness to testify but may notelicit or otherwise permit the witness to present the testimony that the lawyerknows is false.

[7] The duties stated in paragraphs (a) and (b) apply to alllawyers, including defense counsel in criminal cases. In some jurisdictions,however, courts have required counsel to present the accused as a witness or togive a narrative statement if the accused so desires, even if counsel knowsthat the testimony or statement will be false. The obligation of the advocateunder the Rules of Professional Conduct is subordinate to such requirements.See also Comment [9].

[8] The prohibition against offering false evidence only appliesif the lawyer knows that the evidence is false. A lawyer?s reasonable beliefthat evidence is false does not preclude its presentation to the trier of fact.A lawyer?s knowledge that evidence is false, however, can be inferred from thecircumstances. See Rule 1.0(g).Thus, although a lawyer should resolve doubts about the veracity of testimonyor other evidence in favor of the client, the lawyer cannot ignore an obviousfalsehood.

[9]Although paragraph (b) only prohibits a lawyer from offering evidencethe lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the lawyer reasonablybelieves is false. Offering such proof may reflect adversely on the lawyer?sability to discriminate in the quality of evidence and thus impair the lawyer?seffectiveness as an advocate. Because of the special protections historicallyprovided criminal defendants, however, this Rule does not permit a lawyer torefuse to offer the testimony of such a client where the lawyer reasonablybelieves but does not know that the testimony will be false. Unless the lawyerknows the testimony will be false, the lawyer must honor the client?s decisionto testify. See also Comment [7].

Remedial Measures

[10] Having offered evidence in the belief that it was true, a lawyer may subsequently come to know that theevidence is false. Or, a lawyer may be surprised when the lawyer?s client, oranother witness called by the lawyer, offers testimony the lawyer knows to befalse, either during the lawyer?s direct examination or in response tocross-examination by the opposing lawyer. In such situations or if the lawyerknows of the falsity of testimony elicited from the client during a deposition,the lawyer must take reasonable remedial measures. In such situations, theadvocate's proper course is to remonstrate with the client confidentially,advise the client of the lawyer?s duty of candor to the tribunal and seek theclient?s cooperation with respect to the withdrawal or correction of the falsestatements or evidence. If that fails, the advocate must take further remedialaction. If withdrawal from the representation is not permitted or will not undothe effect of the false evidence, the advocate must make such disclosure to thetribunal as is reasonably necessary to remedy the situation, even if doing sorequires the lawyer to reveal information that otherwise would be protected byRule 1.6. It is for the tribunal then to determine what should be done-making astatement about the matter to the trier of fact, ordering a mistrial or perhapsnothing.

[11] The disclosure of a client?s false testimony can result ingrave consequences to the client, including not only a sense of betrayal butalso loss of the case and perhaps a prosecution for perjury. But thealternative is that the lawyer cooperate in deceivingthe court, thereby subverting the truth-finding process which the adversarysystem is designed to implement. See Rule 1.2(d). Furthermore, unless it isclearly 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 special obligation to protect a tribunalagainst criminal or fraudulent conduct that undermines the integrity of theadjudicative process, such as bribing, intimidating or otherwise unlawfullycommunicating with a witness, juror, court official or other participant in theproceeding, unlawfully destroying or concealing documents or other evidence orfailing to disclose information to the tribunal when required by law to do so.Thus, paragraph (b) requires a lawyer to take reasonable remedial measures,including disclosure if necessary, whenever the lawyer knows that a person,including the lawyer?s client, intends to engage, is engaging or has engaged incriminal or fraudulent conduct related to the proceeding.

Duration of Obligation

[13] A practical time limit on the obligation to rectify falseevidence or false statements of law and fact has to be established. Theconclusion of the proceeding is a reasonably definite point for the terminationof the obligation. A proceeding has concluded within the meaning of this Rulewhen a final judgment in the proceeding has been affirmed on appeal or the timefor review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility ofpresenting one side of the matters that a tribunal should consider in reachinga decision; the conflicting position is expected to be presented by theopposing party. However, in any ex parte proceeding, such as an application fora temporary restraining order, there is no balance of presentation by opposingadvocates. The object of an ex parte proceeding is nevertheless to yield asubstantially just result. The judge has an affirmative responsibility toaccord the absent party just consideration. The lawyer forthe represented party has the correlative duty to make disclosures of materialfacts known to the lawyer and that the lawyer reasonably believes arenecessary to an informed decision.

 

 

EffectiveMay 1, 2019