October 17, 1989
A lawyer who learns that a client has falsely testified before a tribunal must first determine whether that false testimony is material.
Although there is no duty to disclose or to rectify the consequences of a client's untruthful testimony which is not material, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's fraudulent act, in the furtherance of which the lawyer's services were used.
References: MRPC 1.2(d), 1.6(c)(3), 3.3(a) and (c).
A client testified falsely in a court hearing, and afterwards advised the lawyer that inaccurate information had been given to the judge. The lawyer urged the client to immediately advise the judge and opposing counsel of the error. The client instructed the lawyer not to correct the testimony. The false testimony was not material or relevant to the facts at issue, no factual issues were in dispute in the matter, and there was no need to place weight or credibility on the client's testimony. The client did intentionally misrepresent the truth. The lawyer asks whether there is a duty to advise the court or withdraw from the matter.
MRPC 3.3(a) and (c) require that:
"(a) A lawyer shall not knowingly:
"(1) make a false statement of material fact or law to a tribunal;
"(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;
". . .
"(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures . . . .
". . .
"(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false."
In this inquiry there is no question that the testimony is false. Compare, CI-392. The lawyer did not know client's testimony was false until after the testimony was given, thus MRPC 3.3(c) does not apply.
Where a client has intentionally given false testimony and refuses to authorize the lawyer to rectify the error, it seems unlikely that the evidence in question was in fact immaterial. Nevertheless, if after careful scrutiny the lawyer is persuaded that the testimony was in fact immaterial, the MRPC 3.3 consequences do not apply. If the lawyer is satisfied the testimony was not material the duties under MRPC 3.3(a)(2) and (4) do not apply. Likewise, if the testimony was not material the lawyer has no duty to remedy under MRPC 3.3(a)(4).
MRPC 1.6(c)(3) states, "A lawyer may reveal . . . confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used . . . ."
MRPC 1.2(d) states, "When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
Therefore, although there is no duty to disclose or to rectify the consequences of the client's testimony, if the lawyer concludes the untruthful testimony amounted to fraud, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of the fraudulent act, in the furtherance of which the lawyer's services were used, even if the client objects.