Samuel C. Stretton. Samuel C. Stretton.

There is both a professional and a practical reason why telling the truth is necessary.

As a lawyer, is it a defense to allegations of false statements or pleadings that I, as a lawyer, personally believe the statements?

The Pennsylvania Supreme Court in opinions in the past like to cite the famous Daniel Webster quote of “Show me an honest man and I will show you an attorney.” Integrity and honesty are the hallmarks of the legal profession. When one is dealing with a lawyer either as opposing counsel or a client or as a judge, one should expect a lawyer will be honest and demonstrate integrity and not mislead. There is no room for white lies or cutting corners in terms of representations to the court, clients, or opposing counsel.

This concept is memorialized in Pennsylvania Rules of Professional Conduct 8.4(c). That rule is very specific and clearly notes it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” That rule is supplemented to some extent by Rule 4.1 of the Rules of Professional Conduct. Rule 4.1(a) precludes a lawyer from making a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting fraudulent and criminal conduct. Comment 1 to Rule 4.1 notes that misrepresentations can occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.

In the case of Office of Disciplinary Counsel v. Surrick, 749 A2d 441 (Pa., 2000), Bob Surrick was disciplined for false statements about misconduct by a Common Pleas judge alleging the judge was acting fraudulently. The defense was that he believed that and did not intend to be dishonest. The Pennsylvania Supreme Court rejected that defense and disciplined him. The critical point to remember in reviewing disciplinary decisions is that the Pennsylvania Supreme Court will not tolerate what might be called a “head in the sand” attitude toward the truth. If something is obviously false and reasonable evidence shows that, then the lawyer cannot justify their misstatement by the fact that they thought it was true or it was their reasonable belief. In other words, there is an objective aspect to whether or not there is a violation of Rule 8.4(c). It is not purely subjective what the lawyer believes, but what a reasonable person would believe.

Further, the Pennsylvania Supreme Court has dealt with the issue whether or not it was a defense if the lawyer was negligent in their statements believing they were true when a more detailed review would indicate the statements were false. The case of Office of Disciplinary Counsel v. Anonymous Attorney, 714 A2d 402 (Pa., 1998), the court essentially held that no intent to deceive would not be a defense for a violation of Rule 8.4(c). The court essentially adopted a standard that the element of scienter is made out by the Respondent’s conduct if the conduct was reckless. Reckless conduct can be deemed to make out a known misrepresentation. Thus, for the purpose of establishing a prima facie case, reckless is described as the deliberate closing of one’s eyes to facts that one had a duty to see or stating a fact, when one was ignorant about the accuracy.”

Therefore, willful blindness will not be a valid defense nor is even negligent a valid defense. If a lawyer is going to make statements about someone else, which turn out not to be truthful; a lawyer has to have a reasonable basis for making those statements. The lawyer can’t just rely on gut feelings or uninformed rumors, etc.

An attorney has to be careful what they say and have a basis for saying it, particularly if they are addressing opposing counsel or a client or the court. There is nothing more damaging to the legal profession than a lawyer being allowed to spread half-truths or making false statements to a court when those statements should have been known or are known by the lawyer to be false.

From a practical standpoint, lawyers have to learn also that judges aren’t fools. A lawyer who doesn’t reveal the entire point or facts or misleads the court directly or by omission will be remembered by the court.  Judges also have friends who are other judges. No lawyer wants judges to always be on guard as to what they say and not trust their integrity. The lawyer’s effectiveness as an advocate can be severely impaired. Therefore, there is both a professional and a practical reason why telling the truth and not cutting corners should be the essence of what every lawyer does.

If the case is closed, a lawyer does not have an obligation to correct false testimony.

I tried a civil case to a jury verdict in my client’s favor. There was no appeal and the case has now been resolved and closed down. I recently discovered my client lied on key points before the jury. What are my obligations?

Normally a lawyer has an absolute duty to correct any misrepresentations or misstatements or untruthfulness from the witness who the lawyer is presenting if and when the lawyer learns that the testimony and information was false or inaccurate. Pennsylvania Rules of Professional Conduct, Rule 3.3, states a lawyer cannot knowingly present false statements of material facts or offer evidence the lawyer has known to be false to a tribunal. A tribunal is defined not only as an arbitrator or a judge or jury, but also during a deposition. A lawyer has to take under Rule 3.3(a)(3), reasonable remedial steps to disclose to the tribunal the misconduct. There is an exception for criminal cases due to the Sixth Amendment of the U.S. Constitution. A criminal client has an absolute right to testify even if it’s false. But, the lawyer can’t argue the falsity or help the client in presenting their testimony to the jury.

In a civil case, there is an absolute duty to correct false testimony or evidence. One should advise the client and get the client’s permission to correct it. If the client will not allow the correction, then the lawyer has the obligation anyway to correct it.

The question presented raised the issue as to is how long does that duty to correct continue?  Rule 3.3(c) states the following: “The duty stated in paragraphs A & B continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.”

Rule 1.6 is the Confidentiality Rule. The Comment to Rule 3.3, though, does put a time limit.  Comment 13 is entitled, “Duration of Obligation.” The Comment reads as follows: “A practical time limit on the obligation to rectify false evidence or false statements of law and fact has to be established.  The conclusion of the proceeding is a reasonably definite point for termination of the obligation.  The proceeding has concluded within the meaning of this Rule when a final judgment in a proceeding has been affirmed on appeal or the time for review has passed.”

Therefore, as the question is written, the lawyer learned only after the case was concluded that the client testified falsely. Under those circumstances, if the case is fully done, then the lawyer does not have an obligation now to correct the false testimony. But, if the lawyer was aware of the problem prior to the conclusion or should have been aware, then the lawyer’s obligation still exists to correct.

Some commentators have trouble with the obligation to correct being extinguished once the case is over. The Comment 13 clearly states the rationale because of the need for finality. On the other hand, false statements or false evidence should not be rewarded. Once a lawyer finds out that the verdict or resolution was based on false testimony or false statements, it seems like the lawyer still should have the obligation to remedy or correct. Perhaps that won’t change the result of the case because of the finality requirement, but it certainly could result in prosecution or civil or criminal acts against the person who initially made the false statements. But, whatever one might think is right or wrong, at least in Pennsylvania the Rule of Professional Conduct 3.3 with Comment 13 clearly defines the end point which is whether the case is concluded or resolved permanently.

Under those circumstances, the person who wrote the question has no duty or requirement to reveal the false statements or information since the case is now long over. But, one must always remember that the Rules of Professional Conduct are the minimal standards. There is nothing that precludes a lawyer from still doing it if the lawyer feels or believes it should be done.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.