Informal Opinion Number: 2020-24

Adoption Date: 2020

Rules: 4-1.2; 4-1.4; 4-1.6; 4-3.3; 4-1.16
Client-Lawyer Relationship
Advocate
Scope of Representation
Communication
Confidentiality of Information
Candor Toward the Tribunal
Declining or Terminating Representation
Subject: Candor to the Court or Tribunal
Summary: false testimony of client at deposition

QUESTION: Client testified at a deposition that Client was currently employed and testified as to the income Client was earning. The testimony was consistent with what Client had told Attorney before the deposition. A few days after the deposition, Client informed Attorney that Client had not been employed for at least three months. Documentation of Client’s employment has not been requested in discovery. If Client testifies truthfully about the issues at an upcoming hearing, does Attorney have an ethical duty to take any action regarding the deposition testimony?

ANSWER: Rule 4-3.3, Candor Toward the Tribunal, governs the conduct of a lawyer representing a client in the proceedings of a tribunal, including ancillary proceedings conducted pursuant to a tribunal’s adjudicative authority, such as a deposition. Rule 4-3.3, Comment [1]. Rule 4-3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false. “Knows” denotes actual knowledge of the fact in question and may be inferred from the circumstances. Rule 4-1.0(f). Attorney should resolve any doubts about the veracity of Client’s testimony in favor of Client, but Attorney cannot ignore an obvious falsehood. Rule 4-3.3, Comment [8]. If Attorney has come to know that material evidence offered by Client in the deposition is false, Rule 4-3.3(a)(3) requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Attorney should remonstrate with Client, advising Client of Attorney’s duty of candor toward the tribunal and seeking Client’s cooperation in withdrawing or correcting the false testimony. See Comment [10]; see also Rules 4-1.2(g) and 4-1.4. If Client will not cooperate, and if withdrawing from the representation will not undo the effect of Client’s false testimony, Attorney must take further remedial measures, including, if necessary, disclosure to the tribunal, even if the disclosure requires Attorney to reveal information that otherwise would be protected by Rule 4-1.6. Rule 4-3.3(c) and Comment [10]. Any disclosure to the tribunal would be limited to what is reasonably necessary to remedy the situation. Rule 4-1.6(c) and Comment [10]. Client’s agreement to testify truthfully about the issue at an upcoming hearing does not relieve Attorney of the duty to take reasonable remedial measures as to the deposition testimony, as required by Rule 4-3.3(a)(3). Normally, Attorney’s compliance with Rule 4-3.3 does not thereafter require Attorney to seek leave to withdraw from the representation. See Rule 4-3.3, Comment [15]. However, if the remedial measures result in an extreme deterioration of the client-lawyer relationship such that competent representation cannot be provided, Rule 4-1.16(a) requires Attorney to seek leave to withdraw.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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