A lawyer's loyalty to his client is not a defense for failure to reveal false information.

I had a several-day deposition when a ranking officer in the corporation who I represent was confronted with documents that appeared to be dated after the fact. Upon further review, there were serious questions as to the accuracy of the documents or whether there were fabrications. What are my responsibilities?

Samuel C. Stretton.

It is always a dreaded problem when a lawyer discovers in civil litigation that the client may not be truthful or is in fact lying. Fabricating documents is a very serious matter, and clearly, if one is doing it under oath, they could face some very serious criminal charges.

The first thing any lawyer wants to do if there is a serious question in a civil case, in terms of the client's testimony, is to stop the deposition, and ask for more time to review the issues raised. Clearly, the lawyer does not want the client to go further if, in fact, the lawyer suspects there is untruthfulness occurring. The lawyer can reschedule the deposition. This will give the lawyer time to speak to the client, figure out what is going wrong, and take the next appropriate steps. This suggestion applies to a civil case. In a criminal case when a lawyer's client takes the stand and lies, the lawyer has different obligations because of the Sixth Amendment of the U.S. Constitution. A criminal defendant has an absolute right to testify, but a lawyer can't assist false testimony other than asking the client his name, and telling the client to state whatever he wants to state. That is it. The lawyer can't argue the false testimony in the criminal case, The lawyer can't reveal the falsehood either.

In a civil case, the rules are different. A lawyer has an obligation to immediately correct the situation. Under Rule 3.3(a) of the Rules of Professional Conduct titled, “Candor Toward the Tribunal,” a lawyer cannot knowingly make false statements to a tribunal, or fail to correct false statements made to a tribunal. Under Rule 3.3(b), if a lawyer who is representing a client knows that the client has testified falsely, the lawyer then has to take reasonable remedial steps, including, if necessary, disclosing that information to the tribunal. Depositions are considered part of tribunals. Disclosing to the tribunal would be disclosing to the assigned judge.

Therefore, under these circumstances, a lawyer should then confront the representative of the corporation who the lawyer represents. If it is clear that the information is false, the lawyer has to correct it, and the lawyer has to advise the person. If the lawyer is going to investigate the information with employees of the corporation, the lawyer must make it clear that the lawyer does not represent those employees and that they have a right to seek independent counsel. Also, if the president of the corporation is not cooperating, and there are serious issues of falsehood, the lawyer may have a duty to go to the next level, such as the board of directors. Under Rule 1.13 of the Rules of Professional Conduct, in terms of duties to a corporation that a lawyer represents, when dealing with the president of a corporation, if the president is not being truthful, that would allow the lawyer to go to the next level to reduce the misconduct. At times, the lawyer may even have to resign under those circumstances, which can lead to a “noisy” resignation.

If the client won't cooperate, the lawyer still has a duty to correct to the tribunal. The lawyer has to notify opposing counsel, notify the tribunal and correct any false statements.

There is always a question about what happens if the case settles. Under Rule 3.3(c), the duty to correct false information in present to the conclusion of the case. In other words, if it appears that the matter is resolved or there is an adverse verdict and the case is done, then there might not be any duty to disclose. Under Comment 13 of Rule 3.3(c), the following is noted, “A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. A proceeding has concluded within the meaning of this rule when a final judgment in the proceeding has been affirmed on appeal or the time for review has passed.”

Presumably, if the case was settled and a praecipe to settle, discontinue and an end was filed, that might be considered the conclusion of the case. The only problem is how the settlement occurred. If the case settled with the other side not knowing the extent of the misconduct, that, of course, would be a fraudulent settlement. One can't take advantage of the falsehood and then settle a case based on false information. Under those circumstances, it gets somewhat difficult unless there was full disclosure, at least, to the other side, and a reasonable settlement was reached. The tribunal then might not have to be advised, though one has to be very careful, and each case would have to be fact specific as to the duty to disclose.

Every lawyer in this area has to be very careful. This is not an area where one can make mistakes lightly. A lawyer can be implicated and have serious disciplinary issues if they do not act properly and correctly. A lawyer should document their file at all points, and certainly document with letters to the client, and maybe letters to the board of directors.

Every lawyer should understand that despite their duty of zealousness and attorney-client privilege and confidentiality, if there is fraud, and the lawyer's services are being used, the lawyer has to reveal it at some point. Failure to do so could have serious disciplinary consequences. And a lawyer's loyalty to his client will not be a defense for failure to reveal.

A lawyer cannot assist his client with false testimony.

If you know your client committed a crime, but they insist on going to trial, is it unethical to undermine the testimony of witnesses who you know are telling the truth?

It is not unethical to question a witness and raise questions as to his recollection or accuracy of his testimony. Every criminal defendant has an absolute right to go to trial, even if he is stone-cold guilty. He has an absolute right to have a trial if he insists and wants one. Of course, the lawyer can't put the criminal defendant on the stand and present false testimony. A client has the absolute right to testify in a criminal case, but the lawyer cannot assist him with his false testimony.

In the prosecution's case, many times it might not be a strong case, and the lawyer can raise reasonable doubt by questioning inconsistencies, recollections and questioning whether the witness was under the influence of anything at the time. As is often seen in child abuse cases, a child who is young can often be easily led because they still, at times, don't have as clear of an understanding of what is reality and what is fantasy. The old Santa Claus and Easter Bunny questions can sometimes have an impact on a child's testimony, at least, with a jury or a fact finder.

There is nothing wrong with a lawyer vigorously questioning witnesses in terms of trying to undermine their credibility. Even if the lawyer knows that the witnesses are telling the truth, the lawyer still has an obligation to try to raise every inconsistency and every point that may have a serious impact on the jury, in terms of whether these witnesses' testimonies can be accepted at a beyond-a-reasonable-doubt level.

A lawyer, in representing a client, has to be competent under Rule 1.1 of the Rules of Professional Conduct. The obligation of that rule is to provide competent representation to a client. Competence under Comment 5 of Rule 1.1 requires adequate preparation.

Therefore, in such a situation, a lawyer has a duty to thoroughly examine witnesses. Also, the lawyer can present some evidence on behalf of the client. For instance, if the client had no prior record, the lawyer could present the traditional character testimony as to peacefulness and law abidingness. Obviously, a lawyer cannot present false testimony—or witnesses who testify that the client didn't do it—when the lawyer knows that the client did.

Being a criminal defense lawyer, at times, is difficult and demanding. It requires a lawyer to walk on a very difficult line, but the guiding point is that one must defend their client to the best of their ability. There are limits to that, such as not presenting false testimony and things of that nature. To answer the question, a lawyer must—and has an absolute duty—to attempt to question or raise issues as to a witness' testimony, even if the lawyer knows that the witness is telling the truth. That is an obligation that a lawyer has to his criminal defense client during a trial.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.