June 19, 1996
A lawyer has no ethical duty to correct or disclose to the opposing party that testimony of the lawyer's client was truthful when made but inaccurate.
References: MRPC 1.2(a) and (c), 1.6, 3.3(a)(2), 3.3(a)(4); RI-13, RI-33; Bronston v US, 409 US 352 (1973).
A lawyer represents the personal representative of an estate in a medical malpractice action. During a deposition, the personal representative was asked and could not remember whether an exhumation autopsy had been conducted. When questioned about that answer by the lawyer shortly after the deposition, the personal representative then remembered that the autopsy had been ordered, but the personal representative did not recall during the deposition having authorized it because it had been "quite a long time in the past."
The lawyer has concluded that the results of the autopsy do not assist the plaintiff in the case, and the plaintiff does not intend to call the pathologist to testify in the matter. The lawyer is convinced that the personal representative was not intentionally untruthful but in fact did not remember. The lawyer asks whether the lawyer is required to disclose that an exhumation autopsy had been authorized and had occurred.
A lawyer is bound to seek the lawful objectives of a client through reasonably available means permitted by law and the rules of professional conduct [MRPC 1.2(a)]. A lawyer is prohibited from counseling a client to engage in conduct that the lawyer knows is fraudulent [MRPC 1.2(c)]. Comments to Rule 1.2 observe that a lawyer is not permitted to reveal a client's wrongdoing, except where permitted by Rule 1.6. The comment further states that, where the client is a fiduciary, the lawyer may be charged with special obligations in dealing with a beneficiary.
MRPC 3.3(a)(2) states:
"(a) A lawyer shall not knowingly
". . .
"(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . ."
MRPC 3.3(a)(4) provides that a lawyer may not knowingly offer evidence that the lawyer knows to be false. See also, RI-13, and RI-33. If the lawyer has offered material evidence and later becomes aware of its falsity, the lawyer is obligated to take reasonable remedial measures. These duties continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
The above authorities, then, provide the basic ethical framework in which inquiries such as presented here are analyzed and addressed. However, the facts presented do not disclose fraudulent or illegal conduct by the personal representative, nor that the information was material to the legal matter. It is only by drawing poorly-grounded inferences from the personal representative's testimony that one could conclude that fraudulent, or even inaccurate, testimony was given.
Here, the personal representative was asked whether an exhumation autopsy had occurred. The personal representative could not recall, and so stated. That testimony was truthful. It was only after the personal representative was later taken aside by the lawyer and reminded of the activities surrounding the exhumation that the personal representative recalled that such activity had been authorized.
Therefore, the inquirer has no ethical obligation to correct the testimony or to make disclosures to the opposing party.