Ind. Prof. Cond. Rule 3.3

Effective January 1, 2005

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of

material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the

lawyer to be directly adverse to the position of the client and not disclosed by opposing

counsel; or

(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. A lawyer may refuse to offer evidence, other than the testimony of

a defendant in a criminal matter, that the lawyer reasonably believes is false.

(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.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding,

and apply even if compliance requires disclosure of information otherwise protected by Rule

1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to

the lawyer which will enable the tribunal to make an informed decision, whether or not the

facts are adverse.

Comment

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the definition of “tribunal.” It also applies when

the lawyer is representing a client in an ancillary proceeding conducted pursuant to the

tribunal's adjudicative authority, such as a deposition. Thus, for example, paragraph (a)

(3) requires a lawyer to take reasonable remedial measures if the lawyer comes to know

that a client who is testifying in a deposition has offered evidence that is false.

[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. A lawyer acting as an

advocate in an adjudicative proceeding has an obligation to present the client's case with

persuasive force. Performance of that duty while maintaining confidences of the client,

however, is qualified by the advocate's duty of candor to the tribunal. Consequently,

although a lawyer in an adversary proceeding is not required to present an impartial

exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must

not allow the tribunal to be misled by false statements of law or fact or evidence that the

lawyer knows to be false.

Representations by a Lawyer

[3] An advocate is responsible for pleadings and other documents prepared for litigation,

but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client's behalf, and not assertions by the lawyer. Compare Rule 3.1. However, an assertion

purporting to be on the lawyer's own knowledge, as in an affidavit by the lawyer or in a

statement in open court, may properly be made only when the lawyer knows the assertion

is true or believes it to be true on the basis of a reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a client to commit

or assist the client in committing a fraud applies in litigation. Regarding compliance with

Rule 1.2(d), see the Comment to that Rule. See also the Comment to Rule 8.4(b).

Legal Argument

[4] Legal argument based on a knowingly false representation of law constitutes dis-

honesty toward the tribunal. A lawyer is not required to make a disinterested exposition of

the law, but must recognize the existence of pertinent legal authorities. Furthermore, as

stated in paragraph (a)(2), an advocate has a duty to disclose directly adverse authority in

the controlling jurisdiction that has not been disclosed by the opposing party. The underlying concept is that legal argument is a discussion seeking to determine the legal

premises properly applicable to the case.

Offering Evidence

[5] Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer

knows to be false, regardless of the client's wishes. This duty is premised on the lawyer's

obligation as an officer of the court to prevent the trier of fact from being misled by false

evidence. A lawyer does not violate this Rule if the lawyer offers the evidence for the purpose of establishing its falsity.

[6] If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence

should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. If only a portion of a

witness's testimony will be false, the lawyer may call the witness to testify but may not eli-

cit or otherwise permit the witness to present the testimony that the lawyer knows is false.

[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense

counsel in criminal cases. In some jurisdictions, however, courts have required counsel to

present the accused as a witness or to give a narrative statement if the accused so

desires, even if counsel knows that the testimony or statement will be false. The obligation of the advocate under the Rules of Professional Conduct is subordinate to such

requirements. See also Comment [9].

[8] 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. A lawyer's knowledge that evidence is false, however, can

be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should

resolve doubts about the veracity of testimony or other evidence in favor of the client, the

lawyer cannot ignore an obvious falsehood.

[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer

knows to be false, it permits the lawyer to refuse to offer testimony or other proof that the

lawyer reasonably believes is false. Because of the special protections historically

provided criminal defendants, however, this Rule does not permit a lawyer to refuse to

offer the testimony of such a client where the lawyer reasonably believes but does not

know that the testimony will be false. Unless the lawyer knows the testimony will be false,

the lawyer must honor the client's decision to testify. See also Comment [7].

Remedial Measures

[10] Having offered material evidence in the belief that it was true, a lawyer may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when

the lawyer's client, or another witness called by the lawyer, offers testimony the lawyer

knows to be false, either during the lawyer's direct examination or in response to cross-examination by the opposing lawyer. In such situations or if the lawyer knows of the falsity

of testimony elicited from the client during a deposition, the lawyer must take reasonable

remedial measures. In such situations, the advocate's proper course is to remonstrate

with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal

and seek the client's cooperation with respect to the withdrawal or correction of the false

statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary

to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should

be done -- making a statement about the matter to the trier of fact, ordering a mistrial or

perhaps nothing.

[11] The disclosure of a client's false testimony can result in grave consequences to the

client, including not only a sense of betrayal but also loss of the case and perhaps a pro-

secution for perjury. But the alternative is that the lawyer cooperate in deceiving the court,

thereby subverting the truth-finding process which the adversary system is designed to

implement. See Rule 1.2(d). Furthermore, unless it is clearly understood that the lawyer

will act upon the duty to disclose the existence of false evidence, the client can simply

reject the lawyer's advice to reveal the false evidence and insist that the lawyer keep

silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the

court.

Preserving Integrity of Adjudicative Process

[12] Lawyers have a special obligation to protect a tribunal against criminal or fraudulent

conduct that undermines the integrity of the adjudicative process, such as bribing, intim-

idating or otherwise unlawfully communicating with a witness, juror, court official or other

participant in the proceeding, unlawfully destroying or concealing documents or other

evidence or failing to disclose information to the tribunal when required by law to do so.

Thus, paragraph (b) requires a lawyer to take reasonable remedial measures, including

disclosure if necessary, whenever the lawyer knows that a person, including the lawyer's

client, intends to engage, is engaging or has engaged in criminal or fraudulent conduct

related to the proceeding.

Duration of Obligation

[13] 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 def-

inite point for the termination of the obligation. A proceeding has concluded within the

meaning of this Rule when a final judgment in the proceeding has been affirmed on

appeal or the time for review has passed.

Ex Parte Proceedings

[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the

matters that a tribunal should consider in reaching a decision; the conflicting position is

expected to be presented by the opposing party. However, in any ex parte proceeding,

such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to

yield a substantially just result. The judge has an affirmative responsibility to accord the

absent party just consideration. The lawyer for the represented party has the correlative

duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal

[15] Normally, a lawyer's compliance with the duty of candor imposed by this Rule does

not require that the lawyer withdraw from the representation of a client whose interests

will be or have been adversely affected by the lawyer's disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek permission of the tribunal to withdraw if the lawyer's compliance with this Rule's duty of candor results in such an extreme deterioration

of the client-lawyer relationship that the lawyer can no longer competently represent the

client. Also see Rule 1.16(b) for the circumstances in which a lawyer will be permitted to

seek a tribunal's permission to withdraw. In connection with a request for permission to

withdraw that is premised on a client's misconduct, a lawyer may reveal information relating to the representation only to the extent reasonably necessary to comply with this Rule

or as otherwise permitted by Rule 1.6.