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    Wisconsin Lawyer
    January 07, 2022

    Ethics
    Lawyers' Duty of Candor: Fundamental But Fuzzy

    That lawyers have a duty of candor to tribunals is clear, but the contours of the obligation are not, especially when duties to clients seem more important.

    Dean R. Dietrich

    Question

    I often hear of the importance of the duty of candor to the tribunal. What does that really mean?

    Answer

    The concept of “candor to the tribunal” is not defined specifically in the Rules of Professional Conduct. It is grounded in SCR 20:3.3(a) and (b) of the Wisconsin Rules of Professional Conduct, which provides as follows:

    SCR 20:3.3 Candor toward the tribunal

    (a) A lawyer shall not knowingly:

    Dean R. DietrichDean R. Dietrich, Marquette 1977, of law firm of Weld Riley S.C., Wausau, is past chair of the State Bar Professional Ethics Committee.

    (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.

    This duty of candor to the tribunal seems easily defined by the above requirements, but there is a high expectation (particularly by judges) that lawyers will be truthful and provide all information to the court that the court might need to make a decision. This includes providing legal authority that might be contrary to the position one attorney is advocating for if another attorney in the proceeding fails to bring forward that legal authority.

    It is very hard to reconcile the duty of advocacy for clients compared to the duty of candor to the tribunal. The rationale behind the superseding responsibility for the duty of candor is the commitment that each lawyer must assist the court to find the truth. It is often written that the ultimate goal of the legal system is to obtain justice, and each lawyer, as an officer of the court, must assist the court in that goal of finding justice.

    Ultimately, the analysis comes down to two major points: 1) the lawyer must correct any false statement of fact or law made to the court whether the false statement is made by the lawyer by mistake or the false statement is made by the client either by mistake or intentionally; and 2) the lawyer has an obligation to provide legal authority that is controlling in the jurisdiction where the matter is being heard if opposing counsel fails to bring forward the legal authority, even if it is contrary to the client’s position.

    This is a fine balance because an advocate does not have a duty to correct a mistaken argument made by opposing counsel but certainly must bring forward legal authority, whether good or bad, in a presentation to the court if the opposing party fails to identify that legal authority. There always can be a debate over whether the legal authority is directly adverse to the position of the client; however, a judge will expect the lawyer to identify that legal authority, even if it is questionable whether it is adverse to the position that the lawyer is taking.

    Ask Us!

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    Ethics Hotline: (800) 254-9154, or (608) 229-2017
    9 a.m. to 4 p.m., Monday through Friday.

    Practice411: (800) 957-4670, or practicehelp@wisbar.org

    » Cite this article: 95 Wis. Law. 47 (January 2022).


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