Wisconsin Lawyer
Vol. 80, No. 8, August 2007

Question

I heard that the new Rules of Professional Conduct create a greater obligation on lawyers to report information to the court if the lawyer learns that false information has been provided. Is that the case?

Answer

The new Rules of Professional Conduct have modified the duties that a lawyer owes to the tribunal. SCR 20:3.3 (effective July 1, 2007) provides as follows:

SCR 20:3.3 - Candor to tribunal.

(a) 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. 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. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paras. (a) and (b) apply even if compliance requires disclosure of information otherwise protected by SCR 20:1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Correcting a False Statement. The obligation in SCR 20:3.3(a)(1) to avoid the making of false statements of fact or law to the tribunal has been modified to place an obligation on lawyers to "correct a false statement of material fact or law previously made to the tribunal by the lawyer." This additional obligation has no ending point. Lawyers must take steps at any time to correct a false statement of material fact or law if the lawyer made such a false statement to the tribunal. The lawyer also must decide whether the statement of fact or law was a material fact or a material statement of law when deciding whether or not to take steps to correct the false statement. This provides additional discretion to the lawyer in deciding what must be done to address an issue before the court.

Disclosing Adverse Legal Authority. The obligation to disclose legal authority in the controlling jurisdiction known by the lawyer to be directly adverse to the position of the lawyer's client is not a new obligation. The change in this and other parts of the rule is that the definition of tribunal has been expanded in SCR 20:1.0(n) to include other types of contested cases and contested hearings such as administrative agency proceedings. The term tribunal is now defined as follows:

(p) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.

Not Offering Known False Evidence. The rule continues the requirement that a lawyer shall not knowingly offer evidence that the lawyer knows to be false. The prior rule indicated that a lawyer must take reasonable remedial measures if a lawyer has offered material evidence and comes to know of its falsehood. The new rule places a requirement on the lawyer to take reasonable remedial measures if the lawyer or the lawyer's client or a witness called by the lawyer has offered material evidence that has been determined to be false. The new rule also requires the lawyer to disclose to the tribunal the fact that the evidence offered was false, if that is the only way to address and correct the situation. This requirement only applies if the evidence is material to the matter. The requirement would continue beyond the proceeding because there is no expiration of the duty to take reasonable remedial measures.

Taking Reasonable Remedial Measures. Under the new rule, a lawyer has an additional obligation if representing a client in an adjudicative proceeding. If the lawyer knows that a person (not just the lawyer's client or witness) intends to engage, is engaging, or has engaged in criminal or fraudulent conduct relating to the proceeding, the lawyer must take reasonable remedial measures to address the criminal or fraudulent conduct. This may involve disclosing the conduct to the tribunal. This rule has been changed from the prior language that required a lawyer to disclose a fact to the tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. The new rule not only concerns active engagement in a criminal or fraudulent act but also instances when an individual intends to engage in a criminal or fraudulent act related to the proceeding or has engaged in a criminal or fraudulent act related to the proceeding. In addition, the new rule applies to the lawyer's knowledge of criminal or fraudulent conduct of any person and does not limit the lawyer's obligation to an act engaged in by the client. There is no time limit on the duty of the lawyer to address the criminal or fraudulent conduct, and thus lawyers may be obligated to correct criminal or fraudulent conduct engaged in by an individual in an adjudicative proceeding regardless of the status of the adjudicative proceeding and regardless of when the lawyer becomes aware of the commission of the criminal or fraudulent act.

All of these obligations under SCR 20:3.3 apply even if compliance requires the lawyer to disclose information that would be considered confidential under SCR 20:1.6, the attorney client confidentiality rule.

Conclusion

The changes to SCR 20:3.3 place a greater burden on lawyers to ensure clear and everlasting candor to the tribunal. Lawyers may be obligated to correct criminal or fraudulent acts committed by others many years after a proceeding has been finalized and the representation has ceased. These changes to SCR 20:3.3 are important because they underscore the paramount duty of lawyers to the court system and the administration of justice.

Wisconsin Lawyer