Must the lawyer blow the whistle?
By Fred C. Moss
Consider the following scenario: Your client is being deposed. Unexpectedly, he tells a highly material lie. There is no doubt the testimony was false given what he previously told you. At the next break, you urge him to correct the lie, but he refuses and directs you to do nothing to expose the falsehood. What do you do?
Texas Disciplinary Rules of Professional Conduct Rule 3.03(b) states that if a lawyer offers material evidence before a tribunal and knows or later learns it was false, the lawyer must “take reasonable remedial measures, including disclosure of the true facts.” Rule 3.03(a)(2) requires a lawyer to reveal perjury to avoid “assisting” the client’s fraud or crime.1
But, do these rules apply to depositions? If not, does Rule 4.01(b) apply? That rule requires a lawyer to disclose a material fact if necessary to avoid assisting the client’s fraud or becoming a “party” to the client’s crime.
Finally, if disclosure is required under either rule, when must it be made?
Surprisingly, all of these questions are unresolved in Texas.
Rule 3.03 and Deposition Perjury
Rule 3.03 is titled “Candor Toward the Tribunal.” However, keep in mind that deposition testimony is not usually given before a tribunal. While American Bar Association Model Rule 3.3, Comment 1, applies its corresponding rule to a tribunal’s “ancillary proceedings,” including depositions, Texas has not explicitly adopted this position.
Even if Rule 3.03 applies to depositions, it can be argued that the lawyer in the posited situation did not “offer” the false evidence. Comment 13 to the rule states that the duty to take remedial measures, including disclosure, does not apply when the perjury occurs under questioning by another party. Normally, deposition testimony is in response to an opposing lawyer’s questions. While the comment clearly addresses perjury under cross-examination at trial, it would be anomalous if disclosure was not required at trial but was required at deposition.2
It also could be argued that the lawyer is not “assisting” the client’s fraud/crime as long as the lawyer does not use the false testimony to further the client’s position. Comment 13 says that when the perjury is elicited by the other side, the lawyer’s only duty is to urge the witness to correct the falsity or withdraw from the representation.3
Finally, if Rule 3.03 requires a lawyer to correct deposition perjury, it may not have to be done during the deposition. Remedies less prejudicial to the client may be available that are not available at trial. With time, a lawyer may be able to persuade the client to correct, clarify, or withdraw the false testimony after the deposition.
Extending Rule 3.03 to
Uncorrected deposition perjury can have a substantial impact upon a lawsuit. It may cause an opponent to seriously misperceive the comparative strength of its case and lead to a settlement or a dismissal that is unjust. Addressing deposition perjury, ABA Ethics Opinion 93-376 (1993) noted:
[E]ven before [false testimony is] filed there is potential ongoing reliance upon [its] content which would be outcome-determinative, resulting in an inevitable deception of the other side and a subversion of the truth-finding process which the adversary system is designed to implement.4
The opinion also observed
that “[c]ontinued participation by the lawyer in the matter without
rectification or disclosure would assist the client in committing a
crime or fraud.” Texas Disciplinary Rules of Professional Conduct Rules
3.03(a)(2) and 1.02(c) prohibit such assistance. While the lawyer may
avoid “assisting” the client’s fraud further by withdrawing from the
representation, “withdrawal can rarely serve as a remedy for the
client’s [already committed] perjury,” the ABA opinion noted. “[T]he
lawyer [is required] to do more than simply distance herself from the
client’s fraud [by withdrawing].”
The Texas Disciplinary Rules of Professional Conduct “are governed by a strong public policy of not affording protection to client information where the client seeks to use the services of the lawyer to aid in the commission of a crime or fraud.”5 Lawyers are required “to be truthful and to avoid assisting or condoning criminal or fraudulent acts or denigrating the justice system or subverting the litigation process.”6 Certainly, failing to correct, disavow, or reveal material deposition perjury amounts to condoning if not assisting the client’s misconduct. Thus, Texas Ethics Opinion 473 (1991) ruled that a lawyer who learned that his or her criminal client had falsely claimed to be indigent must disclose the truth in order to avoid assisting the client’s criminal or fraudulent conduct although the client did not lie in open court.
The ABA has applied the disclosure requirement to depositions because false material evidence, regardless of who elicited it, can adversely affect the outcome of the adjudicatory process. This seems uncontestable. Rule 3.03’s comment should be amended to apply the disclosure requirement to depositions if the client or witness refuses to correct or disavow his or her false material testimony before serious settlement negotiations begin.7
What is absolutely clear is that the lawyer cannot use the false evidence to support the client’s contentions in pre-trial motions, settlement negotiations, or trial.8
Application of Texas Disciplinary Rules of Professional
Conduct Rule 4.01(b) to Deposition Perjury
Rule 4.01(b) requires disclosure of material facts when necessary to avoid “making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.” Deposition perjury is both a fraud and a crime.9 The rule is not confined to conduct before a tribunal.
However, Comment 3 to Rule 4.01 seriously limits the rule’s disclosure requirement. It states that even when it would prevent the lawyer from assisting or becoming a party to the client’s crime or fraud, “Failure to disclose under such circumstances is misconduct only if the lawyer intends thereby to mislead.” This implies that if the lawyer fails to disclose the perjury solely to avoid getting the client into legal trouble or otherwise damaging the client, the lawyer does not violate Rule 4.01(b). Surely, this is incorrect. The rule requires only that the lawyer “knowingly” fail to disclose material facts when necessary to prevent the client’s fraud or crime. No intent to mislead is found in the rule, and comments cannot add required elements to a rule.10
While the client must have the intent to deceive, the lawyer does not. The lawyer’s intent may be relevant to whether the lawyer is an accessory to the client’s fraud or crime as a matter of law, but not for purposes of professional discipline.
Putting aside this “unclear”11 comment, Rule 1.05(f) is clear that Rule 4.01(b)’s obligation to disclose material facts to avoid becoming a party to or assisting a client’s fraud or crime is an exception to the duty of confidentiality. Hence, the key issue is the same as found in Rule 3.03(a)(2): Is failure to disclose the true facts “assisting” the client’s deposition fraud or crime?
If a client’s material deposition perjury is not covered by Rule 3.03, it should be covered by Rule 4.01(b). The falsehood could have a significant impact on the just outcome of the case. The strong public policy in favor of protecting the integrity of the adversary process and the lawyer’s duty as an officer of the court should trump the protection of perjurious clients and witnesses.12
The failure of the offending party’s lawyer to ensure the correction of deposition perjury condones and assists fraud and undermines the justice system by allowing the client to maintain an improper advantage in the fight.TBJ
FRED C. MOSS
is an emeritus professor of law at SMU Dedman School of Law. He has taught and consulted on legal ethics for over 30 years.