SCR 20:3.3. Candor toward the tribunal

Candor toward the tribunal

(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 pars. (a) and (b) apply even if compliance

requires disclosure of information otherwise protected by SCR 20:1.6.

(d) In an ex parte proceeding, 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.

WISCONSIN COMMITTEE COMMENT

Unlike its Model Rule counterpart, paragraph (c) does not specify when the duties expire. For

this reason, ABA Comment [13] is inapplicable.

ABA COMMENT

[1] This Rule governs the conduct of a lawyer who is representing a client in the proceedings

of a tribunal

hat will enable the tribunal to make

an informed decision, whether or not the facts are adverse.

WISCONSIN COMMITTEE COMMENT

Unlike its Model Rule counterpart, paragraph (c) does not specify when the duties expire. For

this reason, ABA Comment [13] is inapplicable.

ABA 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

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 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 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

gument 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 elicit 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)

nduct 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. Offering such proof may reflect adversely on the lawyer's ability to

discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.

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

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 prosecution for perjury.

e 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 prosecution 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, 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.

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 definite point for

the termination of the obligation

, 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 definite 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

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.