April 2011 | Earn one hour of MCLE Credit in Legal Ethics
Don’t lie to me
An attorney’s duty of candor pervades every aspect of practicing law, in and outside the courtroom
It’s finally the day of trial and you are eager to get started. Wanting to make sure both sides are set to go before sending the case to a courtroom and calling up a jury panel, the judge looks at you and asks the loaded question, “Are you ready?” You assume the question has to do with both your preparation and the availability of your witnesses, none of whom are present in court. While you are fairly confident that they have all been subpoenaed and you think you probably have the proofs of service in your trial notebook somewhere, you of course have no idea whether or not they are physically present in the courthouse. And even if somehow, God forbid, they were not served, you are confident that your investigators can find them, particularly because your witnesses are cooperative. Although, you think on the spot, you really haven’t taken the time to verify everyone’s vacation schedules. How then, do you answer the judge’s question?
Whether you are a civil or criminal practitioner, as an attorney, you are ethically bound by the duty of candor. This duty is codified by statute, reaffirmed in case law and mandated by the California Rules of Professional Conduct and the ABA Model Rules of Professional Conduct. The duty of candor covers everything from client perjury, false evidence, representations of procedural issues and citation of authority in court. This article will discuss some of the applicable rules found in statutes, rules of professional conduct and case law.
California Rule of Professional Conduct 5-200, Trial Conduct, states that in presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the member, such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law;
(C) Shall not intentionally misquote to a tribunal the language of a book, statute or decision;
(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional; and
(E) Shall not assert personal knowledge of the facts at issue, except when testifying as a witness.
Note that the California rule differentiates between using truthful means of representation and seeking to mislead the court. This is an important distinction to make, because as trial lawyers know, it is possible to present technically correct bits of evidence or information, but in a manner that is misleading in context. It is also possible to violate the duty of candor by omission. Looking to the ABA for an explicit example, ABA Model Rule 3.3 Comment  notes that there are circumstances where “failure to make a disclosure is the equivalent of an affirmative misrepresentation.”
California Business and Professions Code
A lawyer’s duty of candor is also laid out in the California Business and Professions Code. California Business and Professions Code Section 6068(d) states that it is the duty of an attorney to “employ, for the purpose of maintaining the causes confided to him or her, those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” And lest anyone take a violation of an attorney’s duties lightly, the California Business and Professions Code contains a section that spells out the potential punishment. California Business and Professions Code Section 6103 states that “a willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.”
California Business and Professions Code Section 6106 discusses actions unfit for an attorney, that may result in discipline. The section states that “the commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor.” And California Business and Professions Code Section 6067 requires a lawyer “faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.”
California Business and Professions Code Section 6128 actually imposes misdemeanor criminal liability on a lawyer who engages in or consents to any deceit or collusion “with intent to deceive the court or any party.” (BP 6128(a)) Punishment for violating this section is up to a six-month jail sentence or a fine of up to $2,500 or both.
In California, lawyers are often faced with the competing duties of candor to the court and the duty of confidentiality to one’s client.
The conduct of California lawyers is governed by California Business and Professions Code Section 6068, which enumerates the duties of an attorney. BP 6068(e)(1) states that one of these duties is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” This rule is cited within California Rule of Professional Conduct 3-100, Client Confidentiality. What result then, when a court orders an attorney to answer a question that would necessarily reveal confidential information of a client? Most attorneys would argue they must politely inform the court they are bound by their duty of confidentiality to their client. Some judges, on the other hand, would cite BP 6068(d) (candor), 6068 (b) (duty to respect the court) and CRPC 5-200. None of those sections, however, state that those ethical duties trump the duty of confidentiality to your client stated in BP 6068(e).
Under the ABA Model Rules, a lawyer’s duty to the client is qualified by the duty of candor to the court (Rule 3.3 Comment ). In California, however, the duty of confidentiality is not qualified by the lawyer’s duty of candor to the court. See California Business and Professions Code Section 6068(e) and California Rule of Professional Conduct 5-200. The proposed set of California rules will preserve this distinction.Therefore, when an attorney has received information, even if the information has been received from someone other than her client, she may not be at liberty to answer questions from the court if the answers would reveal confidential information. If, for example, a client’s family member told the attorney the client was under the influence of drugs and would not be coming to court and the attorney was asked by the judge if she “had any idea why her client was not there,” the attorney might make an argument that she was ethically unable to answer the question. See San Diego County Bar Association Ethics Opinion 2011-1. If she were to answer the court’s question in the negative she would violate her duty of candor to the court per Rule 5-200 and BP 6068(d) because she does have an idea why her client wasn’t there (as relayed by the client’s family member). If the attorney answers in the affirmative, she might argue that she would violate her duty of confidentiality under Cal. Bus. and Prof. Code Section 6068(e) because that answer might cause a harmful inference to be drawn to the detriment of her client, thus violating her duty not to reveal client confidential information. Certainly if there were an exculpatory reason the attorney’s client was not in court, the attorney would be free to reveal that information because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]). A resolution to this question, however, cannot be arrived at in the abstract; it must be analyzed under the specific facts and inferences of each individual case.
ABA Model Rules of Professional Conduct
California has not yet adopted a version of the ABA Model Rules, but when the state does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California. State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.
Model Rule 3.3 – Candor Toward the Tribunal, states in subsection (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.
Rule 3.3 states in paragraph (b) that a lawyer representing a client “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.” Paragraph (c) qualifies the duties in paragraphs (a) and (b), stating in pertinent part that they apply “even if compliance requires disclosure of information otherwise protected by Rule 1.6. [Confidentiality].” (emphasis added)
It is important to note that the provisions of Rule 3.3 apply in a broader sense than simply in the courtroom. Comment  states that the duty of candor applies not only in front of a “tribunal,” but also while representing a client in “an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” Therefore, subdivision (1)(3) would require a lawyer who realizes his or her client testified falsely even in a deposition to take remedial measures.
In addition to Rule 3.3, which specifically covers candor in the courtroom, several other Model Rules discuss a lawyer’s duty of candor generally. Model Rule 4.1 – Truthfulness in Statements to Others also covers the duty of candor.
This rule states that: In the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6 (emphasis added). Note the difference between the references to Rule 1.6 in Rule 3.3 versus Rule 4.1. Rule 3.3 requires that candor to the court take precedence over the duty of confidentiality, while Rule 4.1, truthfulness in statements to others, recognizes the higher importance of the duty of confidentiality.
Regarding the issue of affirmative misrepresentation versus passive failure to correct misinformation, Rule 4.1 Comment  states that while an attorney must be truthful in his or her dealings with others in representing a client, he or she “generally has no affirmative duty to inform an opposing party of relevant facts.” The Comment goes on, however, to state that “[a] misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”
Model Rule 8.4, Misconduct, also includes several provisions relating to a lawyer’s duty of candor. Relevant provisions state that it is professional misconduct for a lawyer to (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, or (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
In conclusion, the duty of candor pervades every aspect of practicing law, in and out of the courtroom. A working knowledge of the applicable ethics rules will allow attorneys to practice law competently, honestly, professionally and ethically.
*This article does not constitute legal advice. Please shepardize all case law before using.
• Wendy L. Patrick is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division. She has been a Chair of the San Diego County Bar Association Legal Ethics Committee for more than five years and is Vice Chair of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC).
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