William Randolph Hearst once said, “You must keep your mind on the objective, not on the obstacle.”1 As lawyers, we must always keep this in mind when representing clients. We are taught our duties in law school and reminded of them on the day we work so hard to get to — the swearing-in ceremony when we take our oath. When we are sworn in as lawyers, one of the first things we are told is that we are officers of the court and have fundamental duties to our clients. Most of the time, these duties go hand in hand. However, what happens when they collide? What happens when there are obstacles to the ultimate objective of advocating for our clients?
Those of us who have been in practice for some time know that duty to court and duty to client can become a battle that places the lawyer in the middle of two opposing obligations. What do we do? What controls? There is no clear and unambiguous answer. It is all a balancing act, just like the scales of justice we look up to in our daily professional lives.
Michigan Rule of Professional Conduct (MRPC) 1.6 provides that a lawyer must not knowingly reveal confidences or secrets of a client unless the client has consented or one of the exceptions to MRPC 1.6(c) applies. Meanwhile, MRPC 3.3 provides that a lawyer must not knowingly make a false statement of material fact or law to a tribunal or fail to disclose controlling authority or offer evidence known to be false. It further provides that if a lawyer knows their client or other person intends to or has engaged in criminal or fraudulent conduct related to the proceeding involving the lawyer’s client, the lawyer must take reasonable steps to remediate the conduct and, if necessary, disclose the conduct to the tribunal even if the disclosure of the information would have otherwise been protected by MRPC 1.6.
It should be noted that MRPC 3.3 does not require outright disclosure but instead attempts to remediate or rectify the conduct prior to the last resort of disclosure. For example, a lawyer may file supplemental pleadings or answers, stipulations, or in camera disclosures to the court with opposing counsel present, etc.2
The duties to reveal and keep client confidences conflict in some cases. Fortunately, the duty to keep client confidences is by no means absolute given the exceptions within MRPC 1.6; nonetheless, when a lawyer determines that they must reveal the confidence or secret, they still agonize over how much information they are allowed to reveal.
To illustrate, let’s play a game of pretend. You have a client who gives you receipts that are damning to the other side’s case. You think your case is now rock solid! You believe you have done your due diligence and the receipts are ready to introduce as evidence in your trial. Under discovery rules, you submit the receipts to the other side, mark them as an exhibit, and, at trial, enter the documents, which are accepted into evidence after questioning your client. You break for the day feeling pretty good about how your case is going. You are even thinking about the possibility of discussing with your client proposing a settlement to opposing counsel.
However, the next day, one of the most dreaded moments of a lawyer’s career arises — opposing counsel has emailed stating that the evidence you just entered was not accurate. Attached are the actual receipts. Your heart starts pounding. Now you are not sure which ones are correct. You call your client.
Your client arrives in your office about an hour later. You sit him down and show him the receipts he provided to you (and that were entered into the court’s record) and the receipts opposing counsel emailed to you. They are drastically different. Which ones are accurate will change your assessment of how the case is going. After some prodding, your client states that the receipts he provided are fabricated and he may not have told the complete truth on the stand. He was desperate and needed this case to go well; he felt he had no other choice. Your client begs you not to say anything, as revealing this could lead to additional lawsuits and possible criminal charges.
Now you are in a predicament. Ethics Opinions RI-033 and RI-184 start flashing through your head (hopefully.) The client put you in this position by using your services when questioning him on the stand to introduce false testimony before the court — the testimony material to the case as explained in RI-033. Further, you know the receipts are material to the case, thereby requiring you to disclose the false evidence as explained in RI-184. Revealing your client’s confidence and secret would place him in civil and criminal jeopardy. However, by not revealing your client’s confidence and secret to the court, you would fail in your duty to have candor toward the tribunal. What do you do?
The problem the lawyer needs to evaluate here is determining whether the testimony or evidence is “material” and requires remedial actions.3 In the situation described above, it is evident that the testimony and evidence are of material fact. Therefore, MRPC 3.3 applies. The second step the lawyer must take is advising the client of the reasonable remedial measures required of attorneys who know that false evidence or testimony related to a material fact was presented to the court. The lawyer must look for ways to fix the false testimony or evidence, such as correcting the record. If the client insists the lawyer take no action to remediate the issue, the lawyer must then further explain that they may be forced to move to withdraw from representation under MRPC 1.16.4
At this point, we can envision that the client will simply say, “Fine, go ahead.” But the lawyer must further explain that they may be required to disclose the specific reason for withdrawal as explained in Ethics Opinion RI-209 and specifically inform the court of the falsity of the evidence and testimony entered into the record. More importantly, under MRPC 3.3, regardless of whether the lawyer withdraws, they may still be obligated to notify the court. At the very least, there is often an obligation to advise subsequent counsel, which places the client in the exact same situation, as subsequent counsel also has a duty to remediate the client’s prior false testimony unless an exception applies as per RI-209.
When a lawyer has actual knowledge5 that a client provided false material evidence and submitted it to the court, the lawyer’s first duty to their client is attempting to convince the client to voluntarily correct the admission of the false material evidence. If the client refuses, the lawyer likely has an ethical obligation to disclose to the court the submission of the false evidence and testimony. If any other remedial measures can be taken, the lawyer should absolutely try those first. However, as a last resort, disclosure may be required to remedy false evidence by the lawyer’s client even if the information is otherwise protected client information.
While disclosure may have grave consequences for the client, think of the alternative for the lawyer. The lawyer will be placed in a position of cooperating in deception of the court and subverting the truth-finding process, which is the actual foundation the justice system is built on and what we have sworn to protect. Depending on the circumstances, the lawyer may be violating criminal law by participating in an illegal act.
Remember the oath we took. Remember MRPC 1.6 and MRPC 3.3. We are advocates for our clients, but also officers of the court. Every action a lawyer takes must align with the sworn duty to support the Constitution of the United States, faithfully discharge the duties of an attorney, and conduct oneself with integrity and civility.