To Tell the Truth

The issue of a client lying in a deposition was recently addressed in  Ethics Opinion 692 (October 2021). The Committee on Professional Ethics conceded that this situation “present[s] very difficult issues,” citing the balance between a lawyer’s duty of candor to the court and the duties of loyalty and confidentiality to the client. The Committee focused on Rule 3.03, which requires candor toward the tribunal. Rule 3.03 reads:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;

(4) fail to disclose to the tribunal 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

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.

Comment 13 to that rule states:

A lawyer may have introduced the testimony of a client or other witness who testified truthfully under direct examination, but who offered false testimony or other evidence during examination by another party. Although the lawyer should urge that the false evidence be corrected or withdrawn, the full range of obligation imposed by paragraphs (a)(5) and (b) of this Rule do not apply to such situations. A subsequent use of that false testimony or other evidence by the lawyer in support of the client’s case, however, would violate paragraph (a)(5).

Comment 13, therefore, does not require an attorney to take “reasonable remedial measures” as one does in Rule 3.03(b) where the attorney has unknowingly offered the false evidence.  The distinction here is that the statements were made by a client while being cross-examined by opposing counsel during a deposition. 

That does not mean that the attorney has no duty at all; the attorney is expected to “urge” the client to withdraw or correct the false testimony in that situation. But that ends the attorney’s duty. The obligation to do the right thing then shifts to the client and, if the client fails to do so, the responsibility for that choice does not lie at the feet of the attorney. Nevertheless, the attorney is prohibited from affirmatively using the false testimony.

As Ethics opinion 692 concludes:

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer does not have a duty to correct intentionally false statements made by the client while being cross-examined by the opposing party’s counsel during a deposition.  Nevertheless, the lawyer should urge the client to correct the false statements, including by explaining the potential civil and criminal ramifications of false testimony.  If the client refuses, the lawyer may (but is not required to) withdraw from the client representation if permitted by the Rules.  If the lawyer does not withdraw, the lawyer is not required to disclose the true facts but may not use the false deposition testimony in any way to advance the client’s case.

Of the possible multiple-choice presented above, both A and E inaccurately assume an ethical obligation to either affirmatively correct the false deposition testimony or withdraw.  B understates the ethical duty because it omits the obligation to urge the client to correct the testimony.  C is correct up until the last phrase, “Morgan can proceed in the litigation without further restrictions.”  D more accurately points out that “Morgan is prohibited from affirmatively using the false testimony in any way.”

The best answer is D.