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Attorney E-Newsletter

May 2006

RPC 3.3: Candor Toward Tribunals

("So let us not talk falsely now, the hour is getting late.")

Rule 3.3 governs tricky issues of how a lawyer representing a client before a tribunal should deal with issues of false information and testimony. Note that Rule 1.0(m) defines a "tribunal" not just as a court, but also to include arbitration and an adjudicative (as opposed to lawmaking) administrative agency.

Rule 3.3(a)(1) expands the lawyer's basic duty of candor to tribunals to include a duty to "correct a false statement of material fact or law previously made to the tribunal by the lawyer," even if that statement was made innocently and the lawyer learned of its inaccuracy after the fact.

The former provision of Rule 3.3(a)(2) requiring a lawyer to "disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client" was eliminated. In its place, the new language of Rule 3.3(b) requires that a lawyer involved in a proceeding who knows that any person - not just a client - intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding, must "take reasonable remedial measures, including, if necessary, disclosure to the tribunal." The lawyer's duty to address fraud is not limited to clients but also applies to others - e.g., witnesses and other attorneys. Also, the amendment reflects an increased expectation as to the nature of "reasonable remedial measures;" it is clear that disclosure, while not necessarily the first resort, is expected if other measures fail.

Rule 3.3(a)(3) [formerly 3.3(a)(4)] expands on the lawyer's duties regarding false evidence. The prohibition on knowingly offering false evidence remains intact, but again the lawyer's remedial duties if such evidence comes in are expanded in several respects:

  • The duty to take remedial measures applies not just to the lawyer's own offerings, but also to any evidence introduced by a client or witness called by the lawyer.
  • The duty applies not just to court testimony, but also to any ancillary proceeding, such as a deposition.
  • Once again, the rule makes it clear that disclosure, while not necessarily the first step, is required if other measures fail.

Criminal Defendants: The rule also incorporates the provision of former Rule 3.3(c) that "a lawyer may refuse to offer evidence that the lawyer reasonably believes is false," but exempts testimony of a criminal defendant from this principle. The tension between the right of the criminal defendant to testify and the duty of the lawyer not to offer false testimony has been one of the most extensively debated topics in the area of legal ethics, and a thorough examination of this issue is beyond the scope of this brief summary. Rule 1.2(a) specifically provides that the decision as to whether the defendant in a criminal case will testify is reserved to the client, not the lawyer; the new language resolves the tension between this provision and the duty to not offer false evidence in favor of the former. Comment 9 notes, "Because of the special protections historically provided criminal defendants; however, this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify." However, this obligation does not alter the lawyer's duty to correct false testimony. Comment 7 states, "The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel in criminal cases. In some jurisdictions, however, courts have required counsel to present the accused as a witness or to give a narrative statement if the accused so desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such requirements."

The duties to disclose controlling legal authority adverse to one's position, created by Rule 3.3(a)(2), and to inform the tribunal of all material facts in an ex parte proceeding, created by Rule 3.3(d), are carried over unchanged. Rule 3.3(c) provides that the duties created by Sections (a) and (b) continue until the conclusion of the proceeding, and apply even if the disclosures required are confidential under the terms of Rule 1.6.

Supreme Court Publishes "State of the Commonwealth's Courts Report"

("In the courtroom of honor, the judge pounded his gavel to show that all's equal and that the courts are on the level")

The Honorable Ralph J. Cappy, Chief Justice of the Supreme Court of Pennsylvania, has announced the release of the first State of the Commonwealth's Courts Report, 2006. The 12-page booklet addresses many of the challenges facing the judiciary, as well as solutions to enhance judicial administration through automation, innovation, education and intergovernmental collaboration. The Report and Chief Justice Cappy's statement introducing the report are published at the website of the Administrative Office of the Pennsylvania Courts.

Attorney Registration 2006-2007

("Don't send me no more letters, no")

Even as this newsletter reaches you, the annual flood of Attorney Registration statements is surging through the channels of the U.S. Postal Service. Registration forms and payments are due July 1, 2006. Each lawyer will be asked for a "public access address" which will be published at the Disciplinary Board website, www.padb.us, unless the lawyer provides good reason in writing why it should not be. For those who just can't wait another moment, printable and fillable versions are available at the Board's website here.

Registration must be paid by check; online payment is not available at this time. Penalties for late payment or dishonored checks are published at the Disciplinary Board's website. Payments made with checks drawn on trust accounts will be refused, resulting in late fees and the potential for transfer to inactive status, and will also be referred to the Office of Disciplinary Counsel for investigation.

Changes at the Disciplinary Board Website

("The winds of change are blowing wild and free")

Within the next month, major changes will be implemented at the Disciplinary Board's website, already acclaimed as one of the nation's most powerful, informative, and user-friendly lawyer disciplinary system websites in the country (when forced to choose between modesty and honesty, our duty of candor compels us to the latter). The new changes will provide a more intuitive, attractive, and readable interface for both lawyers and consumers, and information will be reorganized to be more immediately accessible. We can't tell you what the changes are at this point, but if we could, you'd be really impressed. Stay tuned.

Tip of the Month: Don't CC that Client!

("Do you take me for such a fool, to think that I'd make contact?")

When corresponding with opposing counsel about the subject matter of a case, do not send a courtesy copy of your correspondence to that lawyer's client, even if you think it will help in the resolution of the case, or if you suspect the lawyer is not passing information on to his or her client. Rule 4.2 prohibits a lawyer to contact a represented party without the permission of the party's counsel, and there is no exception in the rule for contacts which are also directed to the lawyer. ABA Formal Opinion 92-362 (1992) notes that "The Rule contains no exception for instances where offering counsel believes, or indeed even knows, that the offeree's counsel has not communicated a settlement offer to the offeree," and concludes, "the Committee believes it beyond question that the offering lawyer's communications under the circumstances here considered must continue to be with the offeree's lawyer alone." Accord, Pennsylvania Bar Association Informal Opinion Number 94-167 (1994).

H65BDBD (5/24/41)