Sam Stretton
Samuel C. Stretton ()

The balance between duty to the 
court and to a client is difficult.

It has come to my attention that a client, during a deposition, may have testified to a material fact that was incorrect, but I am not sure. What remedial steps, if any, am I obligated to take?

To answer the question, Rule of Professional Conduct 3.3, titled “Candor Towards the Tribunal,” has to be reviewed. That rule prohibits a lawyer from presenting false evidence. Under Rule 3.3(a)(3), if a lawyer later comes to know of the falsity of the information, the lawyer has to take remedial steps, including disclosure to the tribunal.

Although tribunal, which is defined in Rule 1.0, does not include depositions, Rule 3.3(a)(3) includes depositions as part of the tribunal. The rule actually says, “Pursuant to a tribunal’s adjudicative authority, such as a deposition, and the lawyer comes to know of its falsity.” Comment 1 to Rule 3.3 also references depositions.

Therefore, under the question as posed, if the lawyer knows the information is false, the lawyer has an immediate obligation to straighten out the false testimony. There is no confidentiality requirement. The confidentiality rule, Rule 1.6(b), requires a lawyer to reveal information to comply with the duties as set forth in Rule 3.3. Also, under the exceptions to confidentiality, under Rule 1.6(c), a lawyer has the right to reveal information to rectify the consequences of a client’s criminal or fraudulent act in which the lawyer’s services had been used.

Obviously, the question becomes whether the lawyer has a bonafide belief the client has falsified information or just general suspicions. Under those circumstances, the best practice would be to bring the client in and confront the client. If the client won’t cooperate, that is a consideration. If the client does cooperate and still suggests that the information given during the deposition was correct, the lawyer then should ask the client to give an affidavit to that effect to the lawyer. If the client is willing to do that and there is no other information that can support the lawyer’s suspicions, then it would appear that Rule 3.3 would not require the lawyer to come forward and confidentiality rules may also preclude the same.

Under Comment 8 to Rule 3.3, it is noted that the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. The comment then notes that a lawyer’s knowledge that evidence is false, however, can be inferred from circumstances. The comment continues, “Thus, although a lawyer should resolve doubts about the veracity of testimony or other statements in favor of the client, a lawyer cannot ignore an obvious falsehood.”

Therefore, a reasonable belief is not enough. But knowledge of the falsehood would require a remedial or corrective action. Therefore, a lawyer who has strong hunches or suspicions should bring the client in and take the steps as suggested, including getting an affidavit from the client. The failure of the client to cooperate or be candid with the lawyer may provide the basis for the lawyer to come forward.

A client’s lack of truthfulness with his or her lawyer always creates a difficult situation. A lawyer has to protect his or her client and be very careful about violating attorney-client privilege. On the other hand, the lawyer’s duty as an officer of the court and a professional does not allow false information to be given to a court. There is a tight balancing act here. A lawyer should carefully document his or her thought process in the file if the lawyer either goes forward or doesn’t go forward, because at some point later in time, the lawyer may have to justify what he or she did. Reasonable steps and a reasonable basis would be a good defense to discipline. But a lawyer cannot ignore the obvious, either. Sometimes the lawyer has to take tough steps and tough actions against the client to maintain the integrity of the judicial system.

Before providing information to auditors, 
attorneys should consult clients.

I received a telephone call from the auditor of a client. The auditor is asking questions about the client’s litigation and other business matters for which I have represented the client. Can I provide the client’s accountant or auditor with this information?

The short answer is maybe. Obviously, the first thing a lawyer has to do is get the consent of his or her client. This is particularly so if the information the lawyer would provide could prejudice the client. If there is such prejudice, the lawyer cannot provide the information to the accountant or auditor without the client’s consent. The best practice would be to get the consent in writing.

The appropriate rule is Rule of Professional Conduct 2.3, titled “Evaluation for Use by Third Persons.” Under Rule 2.3(a), a lawyer is allowed to provide an evaluation of a matter affecting a client for use by someone other than the client, but only if the lawyer reasonably believes that making the evaluation is compatible with the other aspects of the lawyer’s relationship with the client. Further, under Subsection (b), if a lawyer knows or reasonably should know the evaluation will affect the client’s interest adversely and materially, then the lawyer needs the client’s consent. Subsection (c) reminds all lawyers that the confidentiality rule applies.

The comments to Rule 2.3 provide some clarification on the question. Comment 6 deals directly with an auditor’s request: “When a question concerning the legal situation of a client arises at the incidence of the client’s financial auditor and the question is referred to the lawyer, the lawyer’s response may be made in accordance with procedures recognized in the legal profession. Such a procedure is set forth in American Bar Statement of Policy regarding lawyer responses to auditor’s requests for information adopted in 1975.”

Therefore, any lawyer providing confidential information or business information about a client to the client’s auditor should carefully review the referenced American Bar Association statement.

It is not uncommon that lawyers representing nonprofit organizations or corporations would have to do a certification using the procedures under the ABA’s standard as to the status of any litigation that is pending or is contemplated against the client. Usually, auditors will require a statement from the council for the business or nonprofit organization once a year.

A lawyer has to recognize the limitations of what he or she can say and at the same time remember that if the lawyer provides this evaluation, this will affect third parties and there has to be a competent level of truthfulness. Otherwise, third parties could be materially prejudiced if the evaluation were incorrect.

Once a lawyer prepares a Rule 2.3 evaluation that third parties are relying on, to some extent there can always be a potential for a conflict of interest under Rule 1.7. The question becomes whether, under those circumstances, the third parties who are going to utilize this information should be considered clients. If one is considered a client, then under Rule 1.4 there is a duty to make full disclosure. If they are not considered a client, then there might not be the same rigorous duty of full disclosure that there is to a client. In any event, a lawyer has to recognize certain duties a lawyer owes to the people who are awaiting the results of the information the lawyer is providing. There is certainly some level of duty to those people. Whether the duty rises to the same full-disclosure level as required in the attorney-client relationship is reviewed on a case-by-case basis.

All lawyers should be aware when they are doing evaluations at a client’s request that will be released to third parties that there are extra duties and responsibilities. A lawyer should be very careful and sometimes it might be a wise decision to decline doing so if the lawyer feels the conflict might be too much.

No lawyer likes to be put in a position where he or she is hurting a client, even if the lawyer has to do that pursuant to his or her role in providing accurate information to the financial auditor. But the lawyer has to be candid at all times. If the lawyer feels that this dual role creates that conflict or if the lawyer feels there is information that could hurt the client and the lawyer does not choose to reveal it, then the lawyer should decline the responsibility of the evaluation.

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, Pa., 19381.