As lawyers, we are all aware (or should be) that we carry a duty of candor toward the tribunal and a duty of fairness to opposing parties and counsel. But the question becomes: What exactly do these duties require? What are our obligations under these rules? And in what circumstances do these obligations arise? That is the focus of this article. The American Bar Association (ABA) Model Rules of Professional Conduct 3.3 and 3.4 govern an attorney’s candor toward the tribunal, and fairness to opposing party and counsel, respectively. Specifically, Rule 3.3 instructs that a lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. It further provides that, if 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, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
Originally Published in the ABA Family Advocate.
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