R 3.3 - Candor Toward The Tribunal

Question 1

What shall an attorney not knowingly do towards a Tribunal?

Answer 1

An attorney shall not knowingly:

1. make a false statement of fact or law or fail to correct a false statement of material fact or law to the tribunal by the lawyer;
2. fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; OR
3. offer evidence known to the attorney to be false.

Question 2

What shall an attorney do when he becomes aware of material evidence and its falsity?

Answer 2

Material evidence that is offered by the attorney, the client, or the witness called by the attorney, and the attorney knows of the falsity, then the attorney shall take reasonable remedial measures, including, if necessary, disclose it to the tribunal.

Question 3

May an attorney refuse to offer evidence?

Answer 3

Yes, so long as the attorney reasonably believes is false.

Question 4

An example of an adjudicative proceeding.

Answer 4

Deposition.

Question 5

What shall an attorney do if the client in an adjudicative proceeding, intends to engage, engages, or has engaged in criminal or fraudulent conduct?

Answer 5

The attorney shall take reasonable remedial measures, including, if necessary, disclose it to the tribunal.

Question 6

If the disclosure is of confidential information, must the attorney still disclose even under the duty of candor towards the tribunal?

Answer 6

Yes.

Question 7

Why shall the attorney inform the tribunal of all material facts facts known to the attorney?

Answer 7

Because it will enable the attorney to make an informed decision, whether or not the facts are adverse.

Question 8

When can an attorney make a statement in open Court?

Answer 8

When the attorney is speaking from his own personal knowledge and knows the assertion to be true or believes it to be true on the basis of a reasonably diligent inquiry.

Question 9

If the opposing party did not disclose a directly adverse precedent that is known to the attorney, what must the attorney do?

Answer 9

The attorney must disclose it to the Court.

Question 10

If the attorney knows that the evidence offered is false, what can he do with it?

Answer 10

The attorney can only present the evidence to prove the falsity of it.

Question 11

What must the attorney do if the client intends to present false evidence?

Answer 11

The attorney should seek to persuade the client that the evidence should not be offered.

Question 12

What must the attorney do if the client insist to present the false evidence, even after persuasion was ineffective and the attorney still represents the client?

Answer 12

The attorney must refuse to offer the false evidence.

Question 13

What happens if the attorney knows that part of the testimony the client is tried to testify about is false, what must the attorney do?

Answer 13

The attorney must not ask questions that will lead up to the portion of the testimony that the attorney knows is false.

Question 14

What occurs when the jurisdiction requires the client to be a witness to be called and the attorney knows that the testimony the client is about to give is false?

Answer 14

The attorney must allow the event to occur, the law of the jurisdiction is a subordinate to the Rules.

Question 15

If the attorney reasonable belief that the evidence is false, does it preclude it to be presented?

Answer 15

No, the attorney must know that the evidence is in fact false.

Question 16

Can the attorney’s knowledge, that the evidence was false, be inferred by circumstances?

Answer 16

Yes.

Question 17

Can the attorney avoid the obvious falsehood of an evidence of testimony?

Answer 17

No.

Question 18

Even if the attorney reasonable belief that the evidence is false, can the attorney refuse to present it?

Answer 18

Yes.

Question 19

Can the attorney, who reasonably believes that the testimony given by the client is false, refuse it from being offered?

Answer 19

No, the attorney must know that it is false.

Question 20

What must an attorney do when a client has made false representation in Court?

Answer 20

The attorney must take reasonable remedial measures by communicating to the client about the attorney’s duty of candor and the process of withdrawing from representation or seeking to correct the false statement.

Question 21

If withdrawal is not feasible after the client has made a false statement, then what must be done by the attorney?

Answer 21

The attorney must disclose to the Court what has been done; this disclosure is necessary even if it violates the disclosure of confidential information.

Question 22

Once the false statement or evidence is given before the Court, when should the attorney rectify the issue?

Answer 22

The attorney must rectify the issue before the final judgment is rendered on the matter.

Question 23

When should an attorney disclose legal authority in the controlling jurisdiction to the tribunal?

Answer 23

After the attorney knows that the opposing side has not done so.