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Rule 3.3. Candor toward the Tribunal.

(a) A lawyer shall not knowingly or recklessly:

(a)(1) make a falsestatement of fact or law to a tribunal or fail to correct a false statement ofmaterial fact or law previously made to the tribunal by the lawyer; or

(a)(2) fail to disclose to the tribunal legal authority in thecontrolling jurisdiction directly adverse to the position of the client and notdisclosed by opposing counsel.

(b) A lawyer shall not offer evidence that the lawyer knows to befalse. If a lawyer, the lawyer?s client, or a witness called by the lawyer hasoffered material evidence and the lawyer comes to know of its falsity, thelawyer shall take reasonable remedial measures, including, if necessary,disclosure to the tribunal. A lawyer may refuse to offer evidence, other thanthe testimony of a defendant in a criminal matter, that thelawyer reasonably believes is false.

(c) A lawyer who represents a client in an adjudicative proceedingand who knows that a person intends to engage, is engaging, or has engaged incriminal or fraudulent conduct related to the proceeding shall take reasonableremedial measures, including, if necessary, disclosure to the tribunal.

(d) The duties stated in paragraphs (a) and (b) continue to theconclusion of the proceeding and apply even if compliance requires disclosureof information otherwise protected by Rule 1.6.

(e) In an ex parte proceeding, a lawyer shall inform the tribunalof all material facts known to the lawyer that will enable the tribunal to makean informed decision, whether or not the facts are adverse.

Comment

[1] This Rule governs the conduct of a lawyer who is representinga client in the proceedings of a tribunal. See Rule 1.0(o) for the definitionof "tribunal." It also applies when the lawyer is representing aclient in an ancillary proceeding conducted pursuant to the tribunal?sadjudicative authority, such as a deposition. Thus, for example, paragraph (b)requires a lawyer to take reasonable remedial measures if the lawyer comes toknow that a client who is testifying in a deposition has offered evidence thatis false.

[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 or evidencethat the lawyer knows to be false or is reckless with respect to its truth.

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. The amendments to Rule 3.3(a) and to Comments [2], [4], [5], and[9], permit finding a violation of the rule if an attorney recklessly, asdefined in Rule 1.0(l), makes a false statement of law or fact or fails todisclose controlling authority. Former Comment [3] is stricken because the UtahSupreme Court disavowed it in Larsen and because it conflictswith the amendments to Rule 3.3(a). 

Legal Argument

[4] Legal argument based on a knowingly or recklessly falserepresentation of law constitutes dishonesty toward the tribunal. A lawyer isnot required to make a disinterested exposition of the law, but must recognizethe existence of pertinent 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 offerevidence that the lawyer knows to be false, regardless of the client's wishes.This duty is premised on the lawyer?s obligation as an officer of the court toprevent the trier of fact from being misled by false evidence. A lawyer doesnot violate this Rule if the lawyer offers the evidence for the purpose ofestablishing its falsity.

[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 advocate underthe Rules of Professional Conduct is subordinate to such requirements. See alsoComment [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(f). Thus, although a lawyer should resolve doubtsabout the veracity of testimony or other evidence in favor of the client, thelawyer cannot ignore an obvious falsehood.

[9] Although paragraph (b) only prohibits a lawyer from offeringevidence the lawyer knows to be false, it permits the lawyer to refuse to offertestimony or other proof that the lawyer reasonably believes is false. Offeringsuch proof may reflect adversely on the lawyer?s ability to discriminate in thequality of evidence and thus impair the lawyer?s effectiveness as an advocate.Because of the special protections historically provided criminal defendants,however, this Rule does not permit a lawyer to refuse to offer the testimony ofsuch a client where the lawyer reasonably believes but does not know that thetestimony will be false. Unless the lawyer knows the testimony will be false,the lawyer must honor the client?s decision to 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 indeceiving 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 of Adjudicative 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 engagedin criminal 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 lawyerfor the represented party has the correlative duty to make disclosures ofmaterial facts known to the lawyer and that the lawyer reasonably believes are necessaryto an informed decision.

 

 

Effective March 12, 2019