‼️
Prof Responsibility • Candor
PR#077
Legal Definition
Under Rule 3.3, a lawyer cannot knowingly offer false evidence. Thus, where they know a witness (including the defendant in a civil case) intends to lie, they should: (1) refrain from calling the witness to the stand; (2) try to convince them not to testify to the false portion; (3) potentially seek withdrawal; and (4) under the ABA rules, disclose enough information to set the matter straight.
Plain English Explanation
Imagine you’re a lawyer, and you know your witness is about to lie in court. What do you do? Under Rule 3.3, a lawyer must never present evidence they know is false. If you find out your witness (yes, even your own client) plans to lie, here’s what you should do:
1. Don’t call the witness to the stand. Why put them in a position to lie? If you can avoid it, don’t let them testify at all.
2. Try to talk them out of it. Convince them that telling the truth is the best path forward. It’s like trying to stop a friend from making a huge mistake—only the consequences are legal, not just social.
3. Consider withdrawing from the case. If your witness insists on lying, you might need to step away from the case. Withdrawal isn’t always easy, especially if it could harm your client, but sometimes it’s the only ethical choice left.
4. Disclose the issue to the court if necessary. Under the ABA Rules, if you can’t convince your witness to tell the truth, you may have to inform the court. Yes, this might feel like betraying your client, but, as an officer of the court, your primary duty is to the justice system. This disclosure should be just enough to rectify the situation without spilling unnecessary details.
In other words, your job as a lawyer isn’t just to win; it’s to win fairly. Lying under oath can lead to perjury charges, and allowing it can harm the integrity of the legal process. So, while it’s tough, your role is to ensure that only the truth comes out in court.
1. Don’t call the witness to the stand. Why put them in a position to lie? If you can avoid it, don’t let them testify at all.
2. Try to talk them out of it. Convince them that telling the truth is the best path forward. It’s like trying to stop a friend from making a huge mistake—only the consequences are legal, not just social.
3. Consider withdrawing from the case. If your witness insists on lying, you might need to step away from the case. Withdrawal isn’t always easy, especially if it could harm your client, but sometimes it’s the only ethical choice left.
4. Disclose the issue to the court if necessary. Under the ABA Rules, if you can’t convince your witness to tell the truth, you may have to inform the court. Yes, this might feel like betraying your client, but, as an officer of the court, your primary duty is to the justice system. This disclosure should be just enough to rectify the situation without spilling unnecessary details.
In other words, your job as a lawyer isn’t just to win; it’s to win fairly. Lying under oath can lead to perjury charges, and allowing it can harm the integrity of the legal process. So, while it’s tough, your role is to ensure that only the truth comes out in court.
Hypothetical
Hypo 1: Bob is representing Sam in a personal injury lawsuit. Their key witness, Timmy, tells Bob he plans to exaggerate Sam's injuries on the stand to help get a bigger payout. Bob explains this would be perjury and strongly advises against it. Timmy insists he'll do it anyway. Result: Bob must not call Timmy as a witness. Bob should inform Sam about the situation and explain that they cannot use Timmy's testimony. If Timmy's testimony is crucial to the case, Bob may need to consider withdrawing if he cannot proceed without the false testimony.
Hypo 2: Bob represents Sam in a civil lawsuit regarding a contract dispute. During the trial, Sam's key witness, Tom, testifies about a crucial meeting between Sam and the opposing party. Tom's testimony directly contradicts an email that Bob had previously seen but had forgotten about until this moment. The email proves that Tom's testimony is false, though Bob believes Tom may have simply misremembered rather than intentionally lied. Result: Under the ABA rules, Bob has a duty to take reasonable remedial measures to correct the false testimony, even though it comes from a witness rather than his client. Bob should first attempt to consult with Sam privately and urge him to have Tom correct the testimony. If Sam refuses or is unable to do so, Bob must disclose enough information to the court to correct the false testimony, even if it harms Sam's case. Bob should disclose the existence and contents of the contradictory email, but he need not speculate on whether Tom's false testimony was intentional or due to faulty memory.
Hypo 2: Bob represents Sam in a civil lawsuit regarding a contract dispute. During the trial, Sam's key witness, Tom, testifies about a crucial meeting between Sam and the opposing party. Tom's testimony directly contradicts an email that Bob had previously seen but had forgotten about until this moment. The email proves that Tom's testimony is false, though Bob believes Tom may have simply misremembered rather than intentionally lied. Result: Under the ABA rules, Bob has a duty to take reasonable remedial measures to correct the false testimony, even though it comes from a witness rather than his client. Bob should first attempt to consult with Sam privately and urge him to have Tom correct the testimony. If Sam refuses or is unable to do so, Bob must disclose enough information to the court to correct the false testimony, even if it harms Sam's case. Bob should disclose the existence and contents of the contradictory email, but he need not speculate on whether Tom's false testimony was intentional or due to faulty memory.
Visual Aids
Related Concepts
According to the Duty Not to Contact Represented Parties, which individuals within an organization must an attorney obtain permission from the organization's lawyer before contacting directly?
Can lawyers compensate witnesses?
How do the rules in California differ regarding how a lawyer balances their Duty of Candor with their criminal defendant client's right to testify if they believe the client intends to lie?
How must a lawyer balance their Duty of Candor with their criminal defendant client's right to testify if they believe they intend to lie?
In California, can an attorney disclose information to set the record straight if one of their witnesses intends to lie?
What are the 9 Affirmative Duties of a Public Prosecutor?
What is an ex parte proceeding, and how does it affect what a lawyer must disclose?
What is the Duty Not to Contact Represented Parties?
What is the Duty of Candor?
What is the Duty to Produce Evidence?
