Model Rule 3.3: Candor Toward the Tribunal

When it applies

This comes up whenever a lawyer is litigating and learns their client or a witness has lied, plans to lie, or when opposing counsel fails to cite directly adverse binding precedent. On the MPRE, it's tested heavily in criminal defense scenarios involving a client who wants to testify falsely, and in civil litigation scenarios involving false evidence already submitted.

What the rule requires

• A lawyer shall not knowingly make a false statement of fact or law to a tribunal, or fail to correct a prior false statement of material fact or law the lawyer made.
• A lawyer shall not knowingly offer evidence the lawyer knows is false; if the lawyer later learns evidence offered was false, the lawyer must take reasonable remedial measures, including disclosure to the tribunal if necessary.
• A lawyer shall disclose to the tribunal legal authority in the controlling jurisdiction directly adverse to the client's position that is known to the lawyer and not disclosed by opposing counsel.
• A lawyer representing a client in an adjudicative proceeding who knows that any person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, such as bribing a juror or testifying falsely, must take reasonable remedial measures, including disclosure to the tribunal if necessary.
• In ex parte proceedings, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
• These duties under Rule 3.3 apply even if compliance requires disclosure of information otherwise protected by Rule 1.6, and they continue through the conclusion of the proceeding.

Exceptions

• The disclosure obligations under this rule generally continue only until the conclusion of the proceeding, defined as when a final judgment is affirmed or the time for appeal expires.
• If a criminal defendant insists on testifying and the lawyer reasonably believes but does not know the testimony will be false, the Model Rules do not allow the lawyer to refuse; the lawyer must honor the defendant's decision to testify. If the lawyer actually knows the testimony will be false, the lawyer must refuse to offer it. Some jurisdictions instead require counsel to present a defendant's testimony in narrative form even when the lawyer knows it is false. That approach is a local variation and is not the Model Rules approach.
• A lawyer may refuse to offer evidence, other than the testimony of a criminal defendant, that the lawyer reasonably believes is false, even if not certain it is false.

How the MPRE tests Model Rule 3.3

• Students confuse 'reasonably believes' with 'knows'; the duty to refuse or correct false evidence generally requires actual knowledge, not mere suspicion, except for the lawyer's own permissive discretion to refuse suspect evidence.
• Students forget that Rule 3.3 trumps Rule 1.6 confidentiality when remedial measures require disclosure, mistakenly thinking confidentiality always wins.
• Students overlook the adverse authority disclosure duty, assuming lawyers only need to present favorable law and can stay silent on unfavorable controlling precedent the other side missed.
• Students assume the duty of candor ends immediately when the case is over, missing that it persists until final resolution including appeal deadlines.