ABA Model Rule of Professional Conduct 3.3, Candor Toward the Tribunal, mandates that an attorney may not knowingly offer false evidence. That’s the easy part: don’t lie. Things get a bit more complicated when it is the client engaged in knowing misrepresentations or deceit. In circumstances when an attorney is aware of a client’s lies, the attorney “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” But what are “reasonable remedial measures”? How soon must the conduct be reported and how? Although there is some helpful analysis available, it is within this gray area that many attorneys may find themselves in an ethical dilemma. Take for instance, the recently suspended Illinois attorney who waited 1 ½ years before correcting his client’s lie.
In 2008 an attorney agreed to represent a client in the administration of his brother’s estate. Client told Attorney that he was the sole heir to his brother’s estate. Based on these representations, Attorney drafted an affidavit of heirship and letters of administration. Client was then appointed administrator. In 2009, Attorney learned that Client was not the sole heir and therefore the affidavit that Attorney filed was incorrect. Attorney did not withdraw, modify or amend the affidavit for 17 months. Instead, Attorney continued to represent to the court that Client was the sole heir, used the false statements to get information from financial institutions, and sold estate property without notifying the additional heirs.
Eventually, the Illinois Review Board learned of the misstatements and Attorney’s failure to act. The Review Board found the misconduct to be significant and recommended a five-month suspension. The board found that when Attorney learned Client had lied, Attorney had an obligation to persuade his client to remedy the false statements or to withdraw as counsel.
Attorneys are not private investigators relied upon to ascertain truth. Rather, attorneys are expected to rely upon the reasonable representations of their clients. However, when information is available which conflicts with the client’s version of events, an attorney cannot ignore that information and must act appropriately to disclose the truth. Some commentators have gone so far as to conclude that candor toward the tribunal is “the bedrock principle” which may even outweigh the attorney-client privilege. The obligation to tell the truth “trumps all, as the rules of procedure and the attorney-client privilege itself are but means to the ends of justice…and can there be justice without truth?”
With this concept in mind, attorneys faced with this difficult scenario would be well served to act objectively. Consider how an outside observer would view the evidence and, if necessary, withdraw from the representation if the client’s behavior is anything less than forthcoming.