A Lawyer’s Responsibility to Disclose False Evidence: A New York City Bar Association Formal Ethics Opinion

If a lawyer discovers after the close of a proceeding that material evidence offered by the lawyer, the lawyer’s client, or witness called by the lawyer during the underlying civil or criminal proceeding was false, the lawyer is obligated, under Rule 3.3(a)(3), to take “reasonable remedial measures,” states a formal Opinion from the New York City Bar Association’s Committee on Professional Ethics (Formal Opinion 2013-2).

Remedial measures include disclosing the false evidence to the tribunal to which the evidence was originally presented, or if it is not possible to reopen the proceeding based on this, disclosing the false evidence to opposing counsel where another tribunal could amend, modify, or vacate the prior judgment.

As the Opinion notes, Rule 1.6 of the New York Rules of Professional Conduct, with limited exceptions, prohibits a lawyer from revealing “confidential information,” which the rule defines as “information gained during or relating to the representation of a client, whatever its source” that is (a) protected by the attorney client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. However, in April 2009, when New York adopted the Model Rules format and amended a number of its rules, the courts promulgated Rule 3.3(c), mandating that under certain narrow circumstances the lawyer’s duty to protect the integrity of the adjudicative process trumps the lawyer’s duties of confidentiality and loyalty to the client. Indeed, “unlike in other jurisdictions, Rule 3.3 is the only mandatory exception in New York to the obligation of confidentiality contained in Rule 1.6,” the Opinion states.

Still, the duty to act is only required if the discovered evidence is “material” to the underlying proceeding. This determination is fact specific, depending on the factors relevant to the ruling, and particularly whether the evidence is of a kind that could have changed the result. If the false evidence is determined to be material, notes the Opinion, “it makes no difference if the falsity was intentional or inadvertent.”

Before taking further action, the lawyer should first remonstrate with the client and seek the client’s cooperation in making a disclosure that will correct the record. Where the original tribunal is not empowered to consider the new evidence and modify, amend, or vacate the prior judgment, but another tribunal is able to do so, the attorney may disclose the false evidence to the opposing counsel in the original proceeding, or if opposing counsel no longer represents said party and there is no successor counsel, to the opposing party, and this disclosure will constitute a reasonable remedial measure.

“The attorney who learns of the false evidence is not usually required to start a new proceeding before a new tribunal. Rather, the opposing counsel or party to whom disclosure is made should determine whether it is appropriate to begin a new proceeding based on the new information,” states the Opinion.   

Rule 3.3 is silent on when the obligation to take remedial action ends. The Committee believes that under Rule 3.3(a)(3) the obligation survives the ‘conclusion of a proceeding’ where the false evidence was presented, and that “the courts’ rejection of an explicit statement that the obligation ends when the proceeding ends, makes it evident.” The State Bar ethics committee has reached the same conclusion. Thus, the obligations of a lawyer end only when a reasonable remedial measure is no longer available.

The Opinion states, “although disclosure may have grave adverse consequences for the client (in some instances including prosecution for perjury), the alternative – for the lawyer to become a willing participant in ‘deceiving the court [and] thereby subverting the truth-finding process’ – is untenable.”

The Opinion can be read here: http://bit.ly/15pyNZ5