Ethics Committee Formal Opinion #1993-94/7
Candor to Tribunal: Use of Questionable Evidence in Criminal Defense
January 27, 1994
ANNOTATION:
A Lawyer must not offer evidence to a tribunal that the lawyer knows to be false. (Rule 3.3(a)(3)).
A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (Rule 3.3(c)).
If a lawyer refuses to offer evidence because the lawyer believes it to be false, the lawyer must promptly notify the client. (Rule 1.4(a)).
In criminal cases, a defense lawyer’s options under Rule 3.3 may be qualified by constitutional provisions for due process and the right to counsel. ( ABA Comment to Rule 3.3).
QUESTIONS:
- Is it ethically permissible for an attorney, during a criminal representation of a client, to use an affidavit obtained by the client’s prior attorney, when such affidavit (absolving client of criminal liability), contradicts prior statements of the affiant (an alleged co-conspirator of client’s)?
- What ethical limitations are there for a lawyer representing his client in a criminal proceeding in using an affidavit not known to be false, but clearly contradicted by prior statements and actions of the affiant?
- Does the fact that the attorney is aware that the client’s prior attorney who prepared the affidavit withdrew for “ethical reasons,” preclude attorney’s use of an affidavit absolving client of criminal liability, which affidavit the attorney does not know to be false?