This blog post is the second in a series on common ethical challenges that arise when preparing for and conducting depositions.
What is a litigator ethically bound to do when a client lies during a deposition? This is not an easy question to answer, even though lawyers are officers of the court and the rules on honesty toward the court appear straightforward on a first reading.
The lawyer’s ethical obligations are spelled out in American Bar Association Rule of Professional Conduct 3.3 (Candor Toward the Tribunal), which provides in its relevant part:
a. A lawyer shall not knowingly:
. . .
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. . . .
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.
On the question of whether the lawyer must divulge a client’s false statements during the deposition, two possible exceptions arise from the language of Rule 3.3. First, does the lawyer know for certain that the client has made a false statement? Often the lawyer does not. Comment 8 to Rule 3.3 advises that any doubts about the truth of the client’s deposition testimony should be resolved in the client’s favor. A mere “reasonable belief” that the client has given false testimony falls short of the actual knowledge required by the rule. According to the drafting committee, Rule 3.3 is directed toward “obvious falsehood[s]” not dubious statements.
The lawyer’s ethical duty to remediate false deposition testimony arises as soon as the lawyer knows the testimony is false. This duty continues throughout the life of the case, right up to the moment at which it is no longer possible for a trial court to reopen the proceedings or an appellate court to modify or vacate the final judgment.
Second, is the client’s false statement material to the litigation? It may not be. Whether a client’s statement is “material” to the case is not defined by Rule 3.3. Dictionary definitions of “material” suggest the false statement must relate to a contested version of some fact relevant to a cause of action or defense in the case.
Assuming that the lawyer knows that the client has made a materially false statement, what is the appropriate course of action? The rules recognize that divulging the client’s false statement to the court can have disastrous consequences for the client and even result in the disclosure of client confidential information. Comment 10 suggests that the lawyer first attempt to convince the client to withdraw or correct the false testimony. In the event the lawyer fails to persuade the client, the lawyer should disclose the false testimony to the court.
According to Comment 15, a lawyer who discloses to the court a client’s false deposition testimony is not strictly required to withdraw from representing the client. However, the lawyer may at this juncture seek the court’s permission to withdraw. Such a request would likely be granted because the lawyer’s compliance with Rule 3.3’s dictate would almost inevitably erode the lawyer-client relationship so gravely that further representation would be impossible.
The lawyer’s ethical duty to remediate false deposition testimony arises as soon as the lawyer knows the testimony is false. This duty continues throughout the life of the case, right up to the moment at which it is no longer possible for a trial court to reopen the proceedings or an appellate court to modify or vacate the final judgment.
Lawyers interested in diving deeper into this topic should consult their local bar associations for guidance specific to their jurisdiction, as well as the following leading bar association opinions on the ethical course of action to be taken when a client makes false statements during a deposition:
Further Reading
This blog frequently features content on legal issues arising at the intersection of technology, deposition practice, and professional ethics. Recent posts include:
