Ethics Corner Article

Dear Ethics Committee:

I am in the middle of my first trial. During his cross-examination, my client made a statement of fact that I know to be incorrect. Do I have an obligation to correct the misstatement, or do other duties restrain me?

This is the second article in a series about an attorney’s obligations with respect to witness testimony. The first article described the ethical framework governing witness preparation. The third article will address witness misbehavior.

A lawyer owes duties of confidentiality to the client and can only disclose information “related to the representation of a client” under limited circumstances. N.H. Rule of Professional Conduct 3.3(a)(3) makes clear that one such circumstance arises when “a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and” the lawyer “comes to know of its falsity.” When that occurs, “the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Id. This obligation “continue[s] to the conclusion of the proceeding and appl[ies] even if compliance requires disclosure of information otherwise protected by Rule 1.6.”

This Committee addressed a nearly identical fact pattern in Advisory Opinion #2008-09/03.

An attorney represents a client who has suffered an injury to his left hand. He is, with the attorney’s help, seeking damages. The client testified on day one of the trial, which was then continued to the next week, that there were no prior injuries to his hand. The attorney took him at his word. Now the attorney has unexpectedly received a medical report from a hospital that was thought to be merely background information when it was requested months ago. The report states that the client had been treated for a previous injury to that hand. The report makes it very clear that the client’s testimony at the trial was false.

The Committee described the steps the attorney should take.

First, the attorney should “communicate with the client. If possible, [she] should try to get the client to ‘own up’ to the false testimony.” Such communications should touch on “whether the testimony was ambiguous, based upon a false assumption, simply incomplete, or otherwise explained in the face of what appears to be plainly false,” and should also address “the penalties for perjury.” Ideally, the client will agree to cooperate in correcting the record.

If the client does not agree to cooperate, “Rule 3.3 requires that reasonable remedial measures be taken.” Before turning to what remedial measures might be required, it is important to emphasize the breadth of Rule 3.3’s scope. The duty to take remedial action continues until the “conclusion of the proceeding,” a term generally understood to be “when a final judgment . . . has been affirmed on appeal or the time for review has passed.” And it extends to contexts far beyond live trial testimony. The definition of “tribunal” in Rule 1.0(m) encompasses any “court,” “arbitrator in a binding arbitration proceeding,” “or a legislative body, administrative agency or other body acting in an adjudicative capacity.” Rule 3.9 extends the remedial obligation even to representation in non-adjudicative proceedings before legislative bodies or administrative agencies (such as lobbying and rule-making).

The rule “also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” Ann. Mod. Rules Prof. Cond. § 3.3, comment 1. It likewise applies to written discovery (e.g., interrogatory answers) and affidavits. People v. Miller, 2017 WL 2634659, at *1 (Colo.O.P.D.J. 2017) (false statement from client in affidavit).

What remedial efforts are appropriate? The specifics will vary from case to case, but the overarching dynamic is that the tribunal must be given the proper and true facts. If efforts to correct the record through amended witness testimony are unsuccessful, the lawyer must raise the issues directly with the tribunal.

A few examples may help give context. In re Grasso, 586 B.R. 110 (E.D. Pa. Bktcy 2018) involved an analysis of a fee application from the debtor’s bankruptcy counsel. The debtor had “falsely testified” during an August 28, 2012 motion hearing that he had no knowledge of certain key transactions. Id. at 161. His counsel, Winterthaler, repaired some of the false testimony at a continued hearing on September 5, but the Debtor repeated and reinforced certain of the false statements. Id. The court found that “Winterthaler knew that the Debtor’s testimony was false and misleading” when it was given at the August hearing, and his incomplete offer of corrective testimony was insufficient. Id. “To fulfill his independent obligations to this Court, Winterhalter was required to correct the record regarding all of the Debtor’s false testimony or disclose them to the Court.” Id. For this (and other reasons), the court denied counsel’s fee application, ordered disgorgement of fees already received, and referred its opinion to “the appropriate disciplinary boards for the jurisdictions in which Winterthaler is authorized to practice.” Id. at 163-64.

In People v. Miller, Miller was hired in early April 2014 to represent a client in a trade secret action brought by his former employer, who alleged that the client had taken confidential information and trade secrets to his new job.

On April 9, 2014, while planning a response to a motion for a temporary restraining order, Miller directed his associate to confirm that the client possessed no company information. Based on a miscommunication, the associate directed the client to delete still-existing company emails. The associate rescinded the instruction within hours, but not before the client had deleted the emails. On April 10, Miller filed his client’s affidavit, in which the client stated that he maintained access to some of the company’s emails after his departure. The affidavit did not disclose, however, that the client’s access continued after the complaint had been filed or that he had deleted multiple emails.

Id. at *1. Miller was able to recover the deleted emails, and “directed those documents to be preserved.” He then proceeded to spurn multiple opportunities to clarify or correct the record. Although he “disclosed to opposing counsel on May 5 that his client possessed company materials . . . he did not disclose the April 9 deletion or the likely recovery of those emails.” Id. “During a hearing later in May, Miller examined his client about pre-litigation email deletions, but the client did not mention the post-complaint deletions or that some deletions were done at counsel’s direction.” Id. Finally, in “October, Miller submitted an interrogatory answer regarding email deletions, but the answer likewise did not mention the post-litigation email deletions directed by counsel.” Id. It was not until November, “after spoliation of evidence issues had been raised” and “just before discovery depositions began” that “Miller disclosed to opposing counsel” what had occurred. The court, acting in its disciplinary capacity, found that Miller violated Rule 3.3(a)(3). It ruled that he “was negligent in determining whether his client’s statements in the April 10 affidavit were false, and he was reckless in failing to take remedial action to timely disclose the false statements.” Id.

Finally, Idaho State Bar v. Warrick, 137 Idaho 86 (2002) offers an example of the timeliness with which a court might expect an attorney to take suitable remedial action. Warrick was prosecuting a drug trafficking case against Ronald Calfee. One of Warrick’s key witnesses, Scott Spaulding, had recently negotiated a plea deal of his own charges in exchange for his testimony against Calfee, a fact of which Warrick was aware. “On cross-examination by defense counsel on day 1 of the trial, Spaulding testified as follows:

  1. And what sort of deal have you worked out with the State to testify here today?
  2. At this point, nothing.
  3. Okay. The State hasn’t offered you any sort of break in your sentencing or anything like that to testify?
  4. No, sir, nothing will be guaranteed me. I came forward on my own free will.

Id. at 88. Warrick “conducted re-direct examination but did not inquire further about the plea agreement and then excused Spaulding as a witness.” Id. As it happened, Spaulding’s arraignment was held later that same afternoon before the same judge presiding over Calfee’s trial. When the judge learned about Spaulding’s deal, and that it had been in place for a month, he “placed the State on notice” about the conflicting testimony, and Calfee’s counsel filed a motion to dismiss the charges. After receiving the motion, Warrick met with Spaulding that evening and made plans to “re-call Spaulding as a witness [the next morning] and to disclose the terms of the plea agreement that had been omitted from” the original testimony. He was denied the chance, however, because the court heard and granted Calfee’s motion to dismiss as its first order of business on day 2 of the trial. The Idaho Professional Conduct Board found that Warrick violated Rule 3.3(a), and he appealed that ruling to the Idaho Supreme Court.

Warrick contends that once he became aware of the false testimony given by Spaulding, he took reasonable remedial measures to correct the testimony. Warrick visited Spaulding in the jail following his arraignment, and planned to call Spaulding to the witness stand the next morning. Warrick argues that he was prepared to correct Spaulding’s testimony on the second day of trial, however, a mistrial was granted before the remedial testimony could be presented.

Again, Warrick’s arguments are misplaced because they ignore the factual finding by the Board concerning the timing when Warrick knew Spaulding’s testimony was false. He knew it was false when the testimony was presented, and at that time he did not take any action to correct the testimony. Waiting until after the district judge and defense counsel learned the testimony was false was not reasonable.

Id. at 92.

In short, upon learning that their client, or a witness they have called has offered false evidence—in any “tribunal,” which includes ancillary proceedings such as depositions as well as discovery responses—a lawyer must promptly and completely fulfill their duty to correct the record. The obligation to take reasonable remedial measures may be more immediate in the context of a trial or other proceeding in which the false evidence may have a more immediate or prejudicial effect. And, especially if efforts to correct the record through amended witness testimony are unsuccessful, it may require disclosure by the lawyer of the evidence’s falsity, and a complete disclosure of the true facts, to the tribunal.

If the false evidence was offered by their client, however, and if it is reasonable and appropriate under the circumstances, the lawyer should strike a more delicate balance between Rule 3.3 and duties owed to the client by first communicating with the client and attempting to secure the client’s agreement to correct the record. If those efforts prove unsuccessful, the lawyer is both permitted and required to correct the record themselves. Importantly, the duty to take reasonable remedial measures is not excused if the lawyer becomes aware of the evidence’s falsity after the damage has already been done; the duty is ongoing until the time for review of the judgment passes, often after an appeal or when the deadline to appeal has expired.

This Ethics Corner Article was submitted for publication review to the NHBA Board of Governors at its April 18, 2024 Meeting. The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the Bar News and other NHBA media outlets. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison at: ethics@nhbar.org