investigation the lawyer still does not When Your Witness Lies: know that it is false, the lawyer’s duties of vigorous advocacy allow, and argu- Considering Rule of Professional ably require, that the lawyer present the evidence and allow the trier of Conduct 3.3 in Civil Litigation fact of make the determination. On the other hand, if it turns out that, BY KIRSTEN H. SPIRA upon investigation, the evidence is false, the issue becomes an easy one: Kirsten Spira is a partner at Jenner & the evidence cannot be offered. Block and Vice-Chair of Los Angeles What If a Lawyer Believes County Bar Association's Professional What If a Lawyer Learns Responsibility and Ethics Committee a Witness is Going to Lie? After The Fact that Subsection 3.3(a)(3) specifically forbids Being a zealous advocate, closely guard- “offer[ing] evidence the lawyer knows the Witness Lied? ing a client’s secrets and presenting a cli- is false.” This admonition is straightfor- ent’s case in a truthful manner, are all es- Where a lawyer has unwittingly offered ward – under no circumstances may a sential obligations that go to the heart of lawyer offer evidence in civil litigation false testimony, rule 3.3(a)(3) requires a lawyer’s ethical duties. Ideally these ob- that lawyer knows is false.3 It does not that the lawyer take remedial measures ligations operate in harmony—but what matter that the client wants the lawyer “including, if necessary, disclosure to happens when a lawyer learns that the 8 to do so, or that refusing to offer the the tribunal.” The obligation to re- client, or one of the client’s key witness- evidence would damage the client’s case. mediate continues through the end of es, has lied? This article examines this co- trial and until “a final judgment in the 1 nundrum in the context of civil litigation. But what if the lawyer only suspects that proceeding has been affirmed on appeal 9 that evidence is false? That’s a bit trickier. or the time for review has passed.” A lying witness may create a situation On one hand, rule 3.3(a)(3) allows where the lawyer’s duties appear to lawyers to “refuse to offer evidence . . A lawyer who believes a witness has conflict. Refusing to offer a witness’ . that the lawyer reasonably believes is lied under oath must first ask: what testimony, correcting perjured testimony, false.”4 This gives lawyers the discretion do I actually know? The mandate to or even withdrawing from the repre- to prevent false testimony even if they take remedial measures applies only if sentation, might severely damage the cannot be absolutely sure the evidence a lawyer has “actual knowledge” that client’s case, be contrary to the client’s is false. On the other hand, a lawyer the witness offered false testimony.10 express instructions, or implicate a client may present evidence that the lawyer Where falsity is merely suspected, no confidence. And yet, California’s Rule suspects is false, or even incredible, so corrective action is necessary. Con- of Professional Conduct 3.3, like many long as the lawyer does not know the versely, if the lawyer knows that the other professional rules and statutes, evidence is false.5 Courts have explained testimony is perjured, rule 3.3 requires forbids lawyers from engaging or assisting that lawyers must be allowed to present the lawyer to take corrective action. in dishonest conduct2 and specifical- even dubious evidence because a law- ly requires that a lawyer who knows yer’s duty to vigorously represent their Corrective action may take various a witness has lied “take reasonable clients entitles lawyers “to resolve all forms, and no single method is mandat- remedial measures, including, if neces- doubts about the credibility of evidence ed. So, for example, the lawyer may en- sary, disclosure to the tribunal ...... ” in their client’s favor.”6 But keep in mind, ter into a stipulation to correct the facts, “knowledge” may be inferred from stipulate to strike the testimony from the Where the client and lawyer can- the circumstance,” so lawyers cannot record, or recall the witness to the stand not agree on a strategy to correct simply turn a blind eye in the face of to correct the testimony.11 In Englebrick v. the record, the lawyer’s mandatory overwhelming evidence of perjury.7 Worthington Industries, a lawyer correct- duty of candor to the tribunal pres- ed his witness’ false deposition testimony ents the lawyer with difficult choices. When in doubt, the lawyer would be by ensuring that the witness testified Though there are few easy answers, well served to investigate and discuss truthfully at trial.12 When obtaining client this article provides a starting point the issue with the client. If the evidence consent to correct the record, lawyers for handling this sticky situation. is critical to the client’s case, and after should remember that the rules of

Reprinted with permission from the September 2020 issue of The Los Angeles County Bar Association’s Updates. © [2020] The original article can be viewed here. professional conduct allow them to refer client. They should explain their duty mation. Thus, for example, in Englebrick, “to considerations other than the law,” of candor, and warn that if the client the court concluded that the lawyer’s including the moral and social benefits of continues to insist on offering or relying strategy of having the witness correct truthfulness, when advising their clients.13 on the false evidence, the lawyer may his deposition testimony at the time of be forced to withdraw, which could hurt trial was superior to withdrawal and that While rule 3.3 specifically requires the the client’s case in various ways, such as the lawyer was not required to break lawyer to take reasonable remedial mea- damaging the client’s credibility, delaying confidentiality by notifying the other party sures that include, “if necessary, disclosure the case, or increasing litigation costs.17 that the deposition testimony was false.23 to the tribunal,” what if the lawyer’s knowledge is based on confidential client If remonstration is unsuccessful, some However, faced with an intransigent client communications? Must lawyers disre- options remain. An attorney, as the and potentially critical false evidence, the gard their duty to hold “inviolate” client “captain of the ship,” generally has the lawyer must at least consider whether confidences where disclosure is necessary authority to make a tactical decision withdrawal is appropriate or required. to correct the record? Under the Model to refuse to call a particular witness or Rule 1.16 provides that a lawyer may Rules, the answer is apparently yes. Mod- even to strike false testimony over the withdraw (i.e., permissive withdrawal) if el rule 3.3 makes the corrective action re- objections of the client, but this may not continuing the representation is “likely” to quirement an exception to the confiden- be true where the evidence is vital to result in a rule violation. Thus, where a tiality requirement in rule 1.6, providing the client’s case.18 The more critical the rules violation is not certain (even though that lawyers must make such disclosures testimony is, the more likely that striking it likely), withdrawal is not mandatory. On as are necessary to remedy “the situation, (or refusing to introduce it) would “impair the other hand, withdrawal is mandatory if even if doing so requires the lawyer to the client’s substantial rights or the cause continuing the representation “will” result reveal information that otherwise would of action itself,” which the attorney may in a rule violation.24 In considering wheth- be protected by rule 1.6.”14 Critically, not do without the client’s consent.19 er a rules violation will occur, the lawyer California takes the opposite approach. must consider all of the rules of conduct, At a minimum, a lawyer who has including the lawyer’s affirmative duty of California’s rule 3.3 is substantively the inadvertently offered perjured testimony competence. Where a conflict between same as Model rule 3.3, with the import- must refrain from referring to or relying the lawyer and client causes a “deteriora- ant caveat that California adds a unique upon the false testimony during the rest tion of the lawyer-client relationship such clause, 3.3(a)(3). That clause prohibits of the litigation.20 This strategy may be that the lawyer can no longer competent- the lawyer, absent client consent, from sufficient to cure the problems presented ly and diligently represent[] the client”25 in disclosing information that is protected by the false testimony, but not always. violation of rule 1.1, withdrawal is man- by section 6068(e) or rule 1.6, even if For example, if the perjured testimony is datory. If withdrawal is necessary, the disclosure would otherwise appear re- the only grounds for seeking a verdict for lawyer must be mindful that, to preserve quired by rule 3.3.15 In short, the lawyer’s the client, the lawyer would necessarily client confidences, the specific reasons duty to “maintain inviolate the [client’s] be implicitly relying on that evidence for the withdrawal cannot be disclosed.26 confidence and at every peril to himself or by seeking a verdict for the client. herself, to preserve the secrets of his or Conclusion her client” is paramount in this equation.16 When Is Withdrawal Thus, a lawyer cannot expose a client Permitted or Required? California’s Rules of Professional Conduct confidence without the client’s permis- prohibit a lawyer from knowingly offering sion, even where such exposure would false testimony, and require that a lawyer be necessary to correct the record. A lawyer faced with a client who is resistant to correcting false testimony is who becomes aware of prior false testimony take measures to remediate Not surprisingly, the most difficult prob- not necessarily required to withdraw from 21 the situation; unfortunately the rules lems arise when the client insists that the representation – indeed, withdraw- al may make matters worse since new provide no easy or “one fit” solution the false testimony go uncorrected. A for fixing false testimony. What reme- lawyer who fails to correct false testimony counsel might not know of the perjured testimony and therefore would not be diation measures are appropriate, and risks violating rule 3.3 and possibly even whether withdrawal may be required, misdemeanor liability under Business in a position to advocate for remedial 22 must be determined on a case-by-case and Professions Code section 6128, but action. Instead, as discussed above, lawyers in this situation must remon- basis, consistent with the lawyer’s other the lawyer’s options are limited, par- ethical obligations. 1 Certain separate ticularly where disclosure would reveal strate with their clients while also looking for ways to correct the record without rules and norms that apply the criminal client confidences. In such a situation, context are not discussed in this article. the lawyer must remonstrate with the exposing their clients’ confidential infor-

Reprinted with permission from the September 2020 issue of The Los Angeles County Bar Association’s Updates. © [2020] The original article can be viewed here. References

1 Certain separate rules and norms that apply the criminal 11 Opn. 2019-200, supra at 7-8. context are not discussed in this article. 12 Englebrick v. Worthington Indus., No. SACV 2 See, e.g., Cal. Bus. & Prof. Code § 6128 (making it a misde- 08-01296-CJC(MLGx), 2016 U.S. Dist. LEXIS 184453, at *31 meanor for attorneys to engage in or consent to “deceit or (C.D. Cal. Aug. 12, 2016), aff’d, Englebrick v. Hodes Milman collusion, with intent to deceive the court or any party”); Cal. Liebeck, LLP, 716 F. App’x 715 (9th Cir. 2018) (however, note Rules of Prof. Conduct, R.8.4(c) (Professional misconduct in- that in this case the lawyer’s obligation to maintain client confi- cludes conduct “involving dishonesty, fraud, deceit, or reckless dences prevented more timely or fulsome remedial action). or intentional misrepresentation”); Cal. Bus. & Prof. Code § 6106 (“The commission of any act involving moral turpitude, 13 Cal. Rules of Prof. Conduct R.2.1, cmt. 2. If remonstration dishonesty or corruption, whether the act is committed in with a third party witness is required, lawyers must take care the course of his relations as an attorney or otherwise, and not to provide legal advice to non-clients, particularly in the whether the act is a felony or misdemeanor or not, constitutes face of potential criminal exposure. a cause for disbarment or suspension.”) 14 Model Rules of Prof. Conduct, R. 3.3, cmt. 10 (“[t]he advo- 3 See, e.g., In re Jones, 5 Cal. 3d 390, 400 (1971); Nahhas v. cate must make such disclosure to the tribunal as is reasonably Pac. Greyhound Lines, 192 Cal. App. 2d 145, 146 (1961). necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be 4 This does not apply to “the testimony of a defendant in a protected by Rule 1.6.”). Many states including New York and criminal matter.” Cal. Rules of Prof. Conduct R.3.3(a)(3). Rule Alabama follow this approach. See, e.g., Association of the 3.3, comment 4 provides instructions for criminal defense Bar of the City of New York Committee on Profession and lawyers whose clients insist on testifying falsely. Judicial Ethics, Formal Opinion 2013-2, at 2 (describing Rule 3.3’s disclosure requirement as “the only mandatory exception 5 People v. Bolton, 166 Cal. App. 4th 343, 357 (2008). to in New York to the obligation of confidentiality contained in Rule 1.6”), https://www.nycbar.org/member-and-ca- 6 Cal. State Bar, Formal Opn. 2019-200 [hereinafter Opn. reer-services/committees/reports- listing/reports/detail/ 2019-200] (citing People v. McKenzie, 34 Cal. 3d 616, 631 formal-opinion-2013-2-lawyers-obligation-to-take-action-if- (1983), on the issue of waiver of the right to counsel abrogated by after-the-conclusion-of- a-proceeding-the-lawyer-comes-to- People v. Crayton, 28 Cal. 4th 346 (2002)). know-that-material-evidence-offered-by-the-lawyer-the-law- yers- client-or-a-witness-called-by-the-lawyer-during-the-pro- 7 “Knowingly,” “known” or “knows” is defined as ‘actual ceeding-was-false#_ftnref3; Alabama State Bar, Ethics Opinion knowledge of the fact in question. A person’s knowledge may RO-2009-01, Ethical Obligations of a Lawyer When His Client be inferred from circumstances.” Cal Rules of Prof. Conduct Has Committed or Intends to Commit Perjury (“If withdrawal R.1.01(f). will not remedy the situation or is impossible, that advocate should make disclosure to the court”), https://www.alabar.org/ 8 The definition of “tribunal” includes courts, as well as other office-of-general-counsel/formal-opinions/2009- 01/. adjudicators such as arbitrators, administrators, and special masters. Cal Rules of Prof. Conduct R.1.01(m). 15 The unique clause is italicized here: “the lawyer shall take reasonable remedial measures, including, if necessary, disclo- 9 Cal. Rules of Prof. Conduct R.3.3, cmt. 6. A prosecutor’s sure to the tribunal, unless disclosure is prohibited by Business obligation to correct false testimony may last even longer under and Professions Code section 6068, subdivision (e) and Rule 1.6.” Rule 3.8. Cal. Rules of Prof. Conduct R.3.3(a)(3) (emphasis added).

10 Cal. Rules of Prof. Conduct R.1.01(f).

Reprinted with permission from the September 2020 issue of The Los Angeles County Bar Association’s Updates. © [2020] The original article can be viewed here. 16 Cal. Bus. & Prof. § 6068(e); Cal. Rules of Prof. Conduct 22 In People v. Johnson (1998) 62 Cal.App.4th 608, 623, in the R.3.3, cmt. 5 (Remedial measures do not include disclosure of context of a criminal action, the court explained that “permitting client confidential information, which the lawyer is required to defense counsel to withdraw does not necessarily resolve the protect under [Bus. & Prof. § 6068(e)] and Rule 1.6). problem” because it may create a cycle of attorneys forced to withdraw, “the accused may be less candid with his new attor- 17 Opn. 2019-200, supra note at 10; Cal. Rules of Prof. Con- ney,” or the client may find a less scrupulous attorney. Thus, duct R.1.16, cmt. 4. the court conducted, that withdrawal “could create even more problems.” 18 See Opn. 2019-200, supra note at 8. 23 Englebrick v. Worthington Indus., 2016 U.S. Dist. LEXIS 19 Blanton v. Womancare, Inc., 38 Cal. 3d 396, 404 (1985) 184453, at *32, *37. (quoting Linsk v. Linsk, 70 Cal. 2d 272, 276 (1969)) 24 Opn. 2019-200, supra note, at 10. 20 Cal. State Bar, Formal Opn. 1983-74. 25 Cal. Rule of Prof. Conduct R.3.3, cmt. 8. 21 Opn. 2019-200, supra note at 8; Cal. Rules of Prof. Conduct R.3.3 cmt. 8. 26 Cal. Rule of Prof. Conduct R.1.16, cmt 4.

Reprinted with permission from the September 2020 issue of The Los Angeles County Bar Association’s Updates. © [2020] The original article can be viewed here.