MRPC Rule 3.3

(a) A lawyer shall not knowingly:

(1) make a false statement of material 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 a tribunal controlling legal authority in the 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 has offered material

evidence and comes to know of its falsity, the lawyer shall take reasonable remedial

measures, including, if necessary, disclosure to the tribunal

(b) If a lawyer knows that the lawyer’s client or other person intends to engage, is engaging, or

has engaged in criminal or fraudulent conduct related to an adjudicative proceeding

involving the client, the lawyer 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 that are

known to the lawyer and that will enable the tribunal to make an informed decision, whether

or not the facts are adverse.

Michigan Rules of Professional Conduct 58 Updated with MSC order(s)

(e) When false evidence is offered, a conflict may arise between the lawyer’s duty to keep the

client’s revelations confidential and the duty of candor to the court. Upon ascertaining that

material evidence is false, the lawyer should seek to persuade the client that the evidence

should not be offered or, if it has been offered, that its false character should immediately be

disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial

measures. The advocate should seek to withdraw if that will remedy the situation. If

withdrawal from the representation is not permitted or will not remedy the effect of the false

evidence, the lawyer 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.

This rule governs the conduct of a lawyer who is representing a client in a 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, subrule (a) 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.

As officers of the court, lawyers have special duties 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 is qualified, however, 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.

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, because 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(c) not to counsel a client to commit or assist the client in committing a fraud applies in

litigation. Regarding compliance with Rule 1.2(c), see the comment to that rule. See also the

comment to Rule 8.4(b).

Legal Argument.

Legal argument based on a knowingly false representation of law constitutes dishonesty 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 controlling adverse authority 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.

Michigan Rules of Professional Conduct 59 Updated with MSC order(s)

Offering Evidence.

Paragraph (a)(3) requires that a 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.

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’ testimony will be false, the

lawyer may call the witness to testify but may not elicit or otherwise permit the witness to

present the testimony that the lawyer knows is false. A lawyer’s knowledge that evidence is

false can be inferred from the circumstances. 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.

Remedial Measures.

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. If that fails, the lawyer must

take further remedial action. 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

The disclosure of a client’s false testimony can result in grave consequences to the client,

including a sense of betrayal, the loss of the case, or perhaps a prosecution for perjury.

However, the alternative is that the lawyer aids in the deception of the court, thereby subverting

the truth-finding process that the adversarial system is designed to implement. See Rule 1.2(c).

Furthermore, unless it is clearly understood that the lawyer must remediate the disclosure of false

evidence, the client could simply reject the lawyer’s counsel to reveal the false evidence and

require that the lawyer remain silent. Thus, the client could insist that the lawyer assist in

perpetrating a fraud on the court.

Preserving Integrity of Adjudicative Process.

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, intimidating, 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. See Rule 3.4.

Duration of Obligation.

Michigan Rules of Professional Conduct 60 Updated with MSC order(s)

A practical time limit on the obligation to rectify the presentation of false evidence or false

statements of law and fact must be established. The conclusion of the proceeding is a reasonably

definite point for the termination of the obligation.

Ex Parte Proceedings.

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 an 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 that are known to

the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Withdrawal.

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.