ANNOTATIONSCOMMENT
[1]The advocate's task is to present the client's case with
persuasive force. Performance of that duty while maintaining
confidences of the client is qualified by the advocate's duty of candor
to the tribunal. However, an advocate does not vouch for the evidence
submitted in a cause; the tribunal is responsible for assessing its
probative value.
Representations by a Lawyer
[2]An advocate is responsible for pleadings and other
documents prepared for litigation, but is usually not required to have
personal
knowledge of matters asserted therein, for litigation documents
ordinarily present assertions by the client, or by someone on the
client's behalf, and not assertions by the lawyer. Compare Rule 3.1.
However, an assertion purporting to be on the lawyer's own knowledge, as
in an affidavit by the lawyer or in a statement in open court, may
properly be made only when the lawyer knows the assertion is true or
believes it to be true on the basis of a reasonably diligent inquiry.
There are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation
prescribed in Rule 1.2(d) not to counsel a client to commit or assist
the client in committing a fraud applies in litigation. Regarding
compliance with Rule 1.2(d), see the Comment to that Rule. See also the
Comment to Rule 8.4(b).
Fraudulent, deceptive, or otherwise illegal conduct by a
participant in a proceeding before a tribunal or legislative body is
inconsistent with fair administration of justice, and it should never be
condoned by lawyers.
Misleading Legal Argument
[3]The complexity of law often makes it difficult for a
tribunal to be fully informed unless the pertinent law is presented by
the lawyers in the cause. A tribunal that is fully informed on the
applicable law is better able to make a fair and accurate determination
of the matter before it. The adversary system contemplates that each
lawyer will present and argue the existing law in the light most
favorable to the client. The advocate may urge any permissible construction
of the law favorable to the lawyer's client, without regard to the lawyer's
professional opinion as to the likelihood that the construction will
ultimately prevail.
Legal argument based on a knowingly false representation of law
constitutes dishonesty toward the tribunal. A lawyer is not required to
make a disinterested exposition of the law, but must recognize the
existence of pertinent legal authorities. Furthermore, as stated in
paragraph (a)(3), an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction which has not been disclosed
by the opposing party. But having made such disclosure, the lawyer may
challenge its soundness in whole or part.
False Evidence
A lawyer should present any admissible evidence the client desires
to have presented unless the lawyer knows, or from facts within the
lawyer's knowledge should know, that such testimony or evidence is
false, fraudulent or perjured.
[4]When evidence that a lawyer knows to be false is
provided by a person who is not the client, the lawyer must refuse to offer
it
regardless of the client's wishes.
[5]When false evidence is offered by the client, however, a
conflict may arise between the lawyer's duty to keep the client's
revelations confidential and the duty of candor to the court. Upon
ascertaining that material evidence is false, the lawyer should seek to
persuade the client that the evidence should not be offered or, if it
has been offered, that its false character should immediately be
disclosed. If the persuasion is ineffective, the lawyer must take
reasonable remedial measures.
[6]Except in the defense of a criminal accused, the rule
generally recognized is that, if necessary to rectify the situation, an
advocate must disclose the existence of the client's deception to the
court or to the other party. Such a disclosure can result in grave
consequences to the client, including not only a sense of betrayal but
also loss of the case and perhaps a prosecution for perjury. But the
alternative is that the lawyer cooperate in deceiving the court, thereby
subverting the truth-finding process which the adversary system is
designed to implement. See Rule 1.2(d). Furthermore, unless it is
clearly understood that the lawyer will act upon the duty to disclose
the existence of false evidence, the client can simply reject the
lawyer's advice to reveal the false evidence and insist that the lawyer
keep silent. Thus the client could in effect coerce the lawyer into
being a party to fraud on the court.
Perjury by a Criminal Defendant
[7]Whether an advocate for a criminally accused has the
same duty of disclosure has been intensely debated. While it is agreed that
the lawyer should seek to persuade the client to refrain from perjurious
testimony, there has been dispute concerning the lawyer's duty when the
persuasion fails. If the confrontation with the client occurs before
trial, the lawyer ordinarily can withdraw. Withdrawal before trial may
not be possible, however, either because trial is imminent, or because
the confrontation with the client does not take place until the trial itself,
or because no other counsel is available.
[8]The most difficult situation, therefore, arises in a
criminal case where the accused insists on testifying when the lawyer
knows that the testimony is perjurious. The lawyer's effort to rectify
the situation can increase the likelihood of the client's being
convicted as well as opening the possibility of a prosecution for
perjury. On the other hand, if the lawyer does not exercise control
over the proof, the lawyer participates, although in a merely passive
way, in deception of the court.
[9]Three resolutions of this dilemma have been proposed.
One is to permit the accused to testify by a narrative without guidance
through the lawyer's questioning. This compromises both contending
principles; it exempts the lawyer from the duty to disclose false
evidence but subjects the client to an implicit disclosure of
information imparted to counsel. Another suggested resolution, of
relatively recent origin, is that the advocate be entirely excused from
the duty to reveal perjury if the perjury is that of the client. This
is a coherent solution but makes the advocate a knowing instrument of
perjury.
[10]The other resolution of the dilemma is that the lawyer
must reveal the client's perjury if necessary to rectify the situation. A
criminal accused has a right to the assistance of an advocate, a right
to testify and a right of confidential communication with counsel.
However, an accused should not have a right to assistance of counsel in
committing perjury. Furthermore, an advocate has an obligation, not
only in professional ethics but under the law as well, to avoid
implication in the commission of perjury or other falsification of
evidence. See Rule 1.2(d).
Remedial Measures
[11]If perjured testimony or false evidence has been
offered, the advocate's proper course ordinarily is to remonstrate with the
client confidentially. If that fails, the advocate should seek to
withdraw if that will remedy the situation. If withdrawal will not
remedy the situation or is impossible, the advocate should take
reasonable remedial measures.
Constitutional Requirements
[12]The general rule--that an advocate must disclose the
existence of perjury with respect to a material fact, even that of a
client--applies to defense counsel in criminal cases, as well as in
other instances. However, the definition of the lawyer's ethical duty
in such a situation may be qualified by constitutional provisions for
due process and the right to counsel in criminal cases. In some
jurisdictions these provisions have been construed to require that
counsel present an accused as a witness if the accused wishes to
testify, even if counsel knows the testimony will be false. The
obligation of the advocate under these Rules is subordinate to such a
constitutional requirement.
Duration of Obligation
[13]A practical time limit on the obligation to rectify the
presentation of false evidence has to be established. The conclusion of
the proceeding is a reasonably definite point for the termination of the
obligation.
Refusing to Offer Proof Believed to be False
[14]Generally speaking, a lawyer has authority to refuse to
offer testimony or other proof that the lawyer believes is
untrustworthy. Offering such proof may reflect adversely on the
lawyer's ability to discriminate in the quality of evidence and thus
impair the lawyer's effectiveness as an advocate. In criminal cases,
however, a lawyer may, in some jurisdictions, be denied this authority
by constitutional requirements governing the right to counsel.
Ex Parte Proceedings
[15]Ordinarily, an advocate has the limited responsibility
of presenting one side of the matters that a tribunal should consider in
reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in an ex parte proceeding,
such as an application for a temporary restraining order, there is no
balance of presentation by opposing advocates. The object of an ex
parte proceeding is nevertheless to yield a substantially just result.
The judge has an affirmative responsibility to accord the absent party
just consideration. The lawyer for the represented party has the
correlative duty to make disclosures of material facts known to the
lawyer and that the lawyer reasonably believes are necessary to an
informed decision.
COMMITTEE COMMENT
Much of this Rule is substantially similar to provisions of the
Code. The major difference is, of course, (a)(4) which places on the
lawyer the obligation to take reasonable remedial measures in a
situation where the lawyer comes to know that he or she has offered
evidence that the lawyer knows to be false. (Under section (b) this
obligation only continues until the end of the proceeding.) Unlike the
present Code, there is no exception in this Rule from the obligation to
take remedial measures for client perjury or other false evidence
presented by the client. Thus even if the lawyer's knowledge of the
falsity of the evidence presented is the result of privileged
information, the lawyer must take reasonable remedial measures.
A lawyer's obligation when faced with client perjury is, of
course, one of the most controversial problems in professional ethics.
The comments to Rule 3.3 nicely bring out the other alternative
positions on client perjury. On balance the Committee felt that the
position put forward in Rule 3.3, which might necessitate revealing the
perjury in certain situations, represented the proper balance among a
lawyer's duty to protect client confidences, a lawyer's obligation to
the court and a lawyer's duty not to assist in the commission of a
crime.
ANNOTATION
Law reviews. For article, "The Attorney, the Client and the Criminal
History: A Dangerous Trio", see 23 Colo. Law. 569 (1994).
For article, "Exculpatory Evidence and Grand Juries", see 28 Colo. Law. 47 (April
1999).
Annotator's note.
Rule 3.3 is similar to
DR 1-102, DR 7-102, DR 7-106, and DR 7-107 as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
DR 7-106 and DR 7-107 have
been included in the annotations to this rule.
Cases construing DR 1-102 have been included under Rule 3.1 and cases
construing DR 7-102 have been included under Rule 1.2.
It was inappropriate for counsel to file a motion and not mention contrary legal
authority that was decided by the chief judge when the existence of the authority was
readily available to counsel. U.S. v. Crumpton, 23 F. Supp.2d 1218 (D. Colo. 1998).
An attorney will not be held responsible for failing to inform the
court of material information of which the attorney is unaware. Waters
v. District Ct., 935 P.2d 981 (Colo. 1997).
An attorney cannot close her eyes to obvious facts, however, the duty
to inform the court concerning her client's financial status does not
obligate the attorney to
undertake an affirmative investigation of her client's financial status.
Waters v. District Ct., 935 P.2d 981 (Colo. 1997).
An attorney is not responsible for informing the court of every known
change in a client's financial circumstances but she must inform the
court of material changes
that not disclosing to the court would work a fraud on the court. For the
purpose of determining eligibility for court appointed counsel, material
changes are those which clearly render the client capable, on a practical
basis, of securing competent representation or reimbursing some or all of
the expenses of court-appointed counsel and costs. Waters v. District Ct.,
935 P.2d 981 (Colo. 1997).
Public censure is appropriate discipline for attorney who submitted
falsified response to grievance committee's request for investigation, violated
prohibition against engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation,
and revealed client confidences to district attorney without client's consent.
People v. Lopez, 845 P.2d 1153 (Colo. 1993).
Public censure is appropriate discipline where attorney falsely testified that he
had automobile insurance at the time of an accident, but outcome of case was not thereby
affected. People v. Small, 962 P.2d 258 (Colo. 1998).
Attorney signing substitute counsel's name to pleadings in a style different from his
own signature, without authority to sign in a representative capacity and without any
indication that he was signing in a representative capacity, violated this rule and warranted
a six-month suspension. People v. Reed, 955 P.2d 65 (Colo. 1998).
Thirty-day suspension appropriate where attorney failed to inform U.S.
bankruptcy court in Colorado, in a hearing on a motion to remand the
matter to U.S. bankruptcy court in Massachusetts, that an order of
dismissal of the bankruptcy proceeding between the same parties had been
entered in California. People v. Farry,
927 P.2d 841 (Colo. 1996).
Aiding client to violate custody order sufficient to justify
disbarment.
People v. Chappell, 927 P.2d 829 (Colo. 1996).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify public censure. People v. Rolfe, 962 P.2d 981 (Colo. 1998).
Conduct violating this rule in conjunction with other disciplinary
rules is
sufficient to justify suspension. People v. Mason, 938 P.2d 133 (Colo.
1997).
Cases Decided Under Former DR 7-106.
Law reviews. For formal opinion of the Colorado Bar Association Ethics
Committee on Use of Subpoenas in Civil Proceedings, see 19 Colo. Law.
1556 (1990).
Lawyers, as officers of the court, must maintain
the respect due to courts and judicial officers.
Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973).
License to practice law assures public that the lawyer who holds the
license will perform basic legal tasks honestly and without undue delay,
in accordance with the highest standards of professional conduct.
People v. Dixon, 621 P.2d 322 (Colo. 1981).
Public expects appropriate discipline for misconduct.
The public has a right to expect that one who engages in professional
misconduct will be disciplined appropriately.
People v. Dixon, 621 P.2d 322 (Colo. 1981).
Actions taken by attorney contrary to court order
violate this rule and justify suspension.
People v. Awenius, 653 P.2d 740 (Colo. 1982);
People v. Belina, 765 P.2d 121 (Colo. 1988).
Willful nonpayment of child support and failure to pay arrearages after
ordered by court to do so is a violation of subsection (A). People v.
Tucker, 837 P.2d 1225 (Colo. 1992).
Threatening to invoke disciplinary proceedings against judge in
anticipation of adverse ruling warrants public censure. People v. Tatum, 814
P.2d 388 (Colo. 1991).
Prosecutor engaged in professional misconduct where references to the
defense theory as "insulting" or a "lie" and to the defense's challenge to the
credibility of a prosecution witness as "cheap innuendos" were made for the
obvious purpose of denigrating defense counsel. People v. Jones, 832 P.2d
1036 (Colo. App. 1991).
Prosecutor made argument of a highly improper nature by implying to
jurors that opposing counsel did not have a good faith belief in the
innocence
of her client and such an argument served no legitimate purpose but had the
function only of erroneously diverting the attention of the jurors from the
factual issues concerning defendant's guilt. People v. Jones, 832 P.2d 1036
(Colo. App. 1991).
An attorney's personal belief in the veracity of a witness' testimony is
not a proper subject of closing argument. Consequently, the law requires
that the prosecutor's personal opinion as to the truth or falsity of any
testimony or as to guilt shall not be outwardly indicated nor presented to
the
jury as an interpretation based upon legitimate inferences which might be
drawn from the evidence adduced at trial. People v. Jones, 832 P.2d 1036
(Colo. App. 1991).
Conduct violating this rule in conjunction with other disciplinary rules
is sufficient to justify public censure. People v. Dalton, 840 P.2d 351
(Colo. 1992).
Conduct violating this rule sufficient to justify public censure.
People v. Fieman, 788 P.2d 830 (Colo. 1990).
Conduct violating this rule in conjunction with other
disciplinary rules is sufficient to justify suspension. People v.
Creasey, 793 P.2d 1159 (Colo. 1990);
People v. Taylor, 799 P.2d 930 (Colo. 1990);
People v. Hyland, 830 P.2d 1000 (Colo. 1992);
People v. Cohan, 913 P.2d 523 (Colo. 1996);
People v. Wotan, 944 P.2d 1257 (Colo. 1997);
People v. Porter, 980 P.2d 536 (Colo. 1999);
In re Bobbitt, 980 P.2d 538 (Colo. 1999).
Conduct violating this rule sufficient to justify suspension.
People v. Kane, 655 P.2d 390 (Colo. 1982);
People v. Barnthouse, 775 P.2d 545 (Colo. 1989), cert. denied, 493 U.S. 1026,
110 S. Ct. 734, 107 L.Ed.2d 752 (1990).
Conduct violating this rule in conjunction with other disciplinary
rules is sufficient to
justify disbarment. People v. Schaefer, 944 P.2d 78 (Colo. 1997).
Applied in
People ex rel. Aisenberg v. Young, 198 Colo. 26, 599 P.2d 257 (1979);
People v. Kane, 638 P.2d 253 (Colo. 1981);
People v. Harfmann, 638 P.2d 745 (Colo. 1981);
Wilson v. People, 743 P.2d 415 (Colo. 1987).
Cases Decided Under Former DR 7-107.
Law reviews.
For formal opinion of the Colorado Bar Association Ethics Committee on
Lawyer Advertising, Solicitation and Publicity, see 19 Colo. Law. 25 (1990).
Trial judge has power to punish summarily for contempt
any lawyer who in his presence wilfully contributes to
disorder or disruption in the courtroom.
Losavio v. District Court, 182 Colo. 180, 512 P.2d 266 (1973).
News releases by counsel held contrary to good practice.
Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).
The participation of the district attorney and his deputy
in an ill-timed radio interview which suggested a connection
between the condominium fires and organized crime is not condoned.
People v. Mulligan, 193 Colo. 509, 568 P.2d 449 (1977).
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