Informal Opinion Number: 2020-25

Adoption Date: 2020

Rules: 4-1.1; 4-1.2; 4-1.4; 4-1.6; 4-1.16; 4-3.3
Client-Lawyer Relationship
Advocate
Competence
Scope of Representation
Communication
Confidentiality of Information
Declining or Terminating Representation
Candor Toward the Court
Subject: Candor to the Court or Tribunal; Divorce/Dissolution
Summary: remedial measures when lawyer learns of false information filed in connection with dissolution matter

QUESTION: Based on information provided by Client, Attorney submitted to the court in a dissolution matter information in a required form stating that four children primarily reside in Client’s custody. Shortly thereafter, the Guardian Ad Litem appointed for the children told Attorney that three of the children listed on the form had not lived with Client for several months. What is Attorney’s ethical obligation regarding the submission?

ANSWER: Rule 4-3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false. If Attorney has come to “know” that information submitted to the tribunal on behalf of Client is false, Rule 4-3.3(a)(3) requires Attorney to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” “Know” denotes actual knowledge of the fact in question and may be inferred from the circumstances. Rule 4-1.0(f). Attorney should consult with Client and may take other reasonable steps as necessary to determine the truth or falsity of the information. Attorney should resolve any doubts about the veracity of the statements in favor of Client, but Attorney cannot ignore an obvious falsehood. Rule 4-3.3, Comment [8]. If Attorney comes to know the evidence is false, 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 evidence. See Rule 4-3.3, 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 the false evidence, 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]. 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.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

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