COMMUNICATING WITH TRIBUNALS
CONSEQUENCES OF FALSE STATEMENTS AND FAILURE TO DISCLOSE
In the legal community, it is not uncommon to hear as a rallying cry: “I must zealously represent my client!”¹ This rallying cry, however, is sometimes camouflage for the misconceived notion that lawyers can do or say anything in the representation of their clients. While we certainly have duties to our clients, there are boundaries that we must not cross. Courts have recognized this:
It is axiomatic that, as an integral part of our system of government, the legal system depends on the relationship between the bench and the bar. An honest and ethical lawyer has long been part of the foundation for the historically elevated and well-deserved role that lawyers have played in our culture. Lawyers, then, owe to the courts duties of scrupulous honesty, forthrightness, and the highest degree of ethical conduct. Inherent in that high standard of conduct is compliance with both the spirit and express terms of established rules of conduct and procedure. In Re: J.B.K., 931 S.W.2d 581, 583 (Tex. App.-EI Paso 1996, no writ).
In fulfilling his or her duty to a client, a lawyer must be ever mindful of the profession’s broader duty to the legal system. Id. at 583.
This paper will review some of the boundaries we must not cross when we are dealing with tribunals and will consider the consequences to lawyers who cross them.
II. The Standards
- A. The Disciplinary Rules
One of the sources of rules affecting the conduct of Texas lawyers is Texas Disciplinary Rules of Professional Conduct (“Disciplinary Rules”). The Preamble states:
A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. Lawyers, as guardians for the Law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct. (Texas Disciplinary Rules of Professional Conduct, Preamble ¶ 1).
Many ethical problems arise from apparent conflict between our responsibilities to our clients, to the legal system, and to our own interests (Texas Disciplinary Rules of Professional Conduct, Preamble ¶ 7). The Disciplinary Rules prescribe the terms for resolving many of these tensions, although there are of course situations that fall within the “gaps” in the Rules. It is worth noting that the Disciplinary Rules set the minimum standards that determine whether a lawyer’s conduct will be subject to discipline within the disciplinary system. (Texas Disciplinary Rules of Professional Conduct Preamble ¶ 7). They do not provide standards for the standard of care nor the standard of conduct in tort actions. (Texas Disciplinary Rules of Professional Conduct, Preamble ¶ 15).
Rule 3.03 describes a lawyer’s duties with regard to candor to the tribunal. The Rule, entitled “Candor Toward the Tribunal”, states:
a) A lawyer shall not knowingly²:
(1) make a false statement of material fact or Jaw to a trlbunal;³
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision;
(4) fall to disclose to the tribunal 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
(5) offer or use evidence that the lawyer knows to be false.
b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible. (Texas Disciplinary Rules of Professional Conduct, 3.03).
The comments to Rule 3.03 note that when in open court or communicating with a tribunal, a lawyer can only properly make representations of fact if he or she knows the assertions to be true or believes, based on a reasonably diligent inquiry, that the assertions are true. Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 2.
B. The Rules of Civil Procedure
Rule 13 of the Texas Rules of Civil Procedure points out:
The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment.
In addition to being subject to disciplinary action for violations of Rule 3.03, a lawyer can be subject to sanctions under Rule 13 for pleadings that are groundless, brought in bad faith, or brought for the purpose of harassment.
III. Lessons from the Case Law
A. When communications with a are tribunal subject to the Rule 3.03 standards
In Cohn v. Commission for Lawyer Discipline, 979 S.W.2d 694 (Tex. App. – Houston [14th Dist.] 1998, no pet.), the court held that a lawyer’s fax to the court constituted a breach of Rule 3.03 and that the Rule applies to a lawyer’s conduct whether or not the lawyer is advocating for a client. In Cohn the Commission for Lawyer Discipline filed disciplinary proceedings against a lawyer for making false statements of material fact to a tribunal and falling to take remedial measures.
The case involved a party appearing pro se at a docket call as a defendant in a civil suit. The party told the court that he had filed a motion for permission to seek bankruptcy protection and that he wanted a continuance. After the docket call, the party called lawyer Cohn and asked him to check on the status of the bankruptcy motion.4 Cohn did so and advised the party that the bankruptcy case had not been reopened. Nevertheless, Cohn sent a fax to the judge stating that the bankruptcy case had been reopened and the automatic stay was in effect. Based on Cohn’s representation, the court continued the pro se party’s case even though it had been reset numerous times. Cohn never disclosed the true status of the bankruptcy case to the court.
During the disciplinary action against Cohn, the trial court concluded that Cohn had made false statements of material fact to a tribunal and failed to take remedial measures. It ordered a six-month suspension of Cohn’s law license.
On appeal, Cohn argued that the trial court, in the disciplinary action, erred in finding that Rule 3.03 applied because it “only applies to the courtroom activities of an attorney when he is acting as an advocate.” Cohn argued that he was not an advocate within the meaning of the Rule because he had not appeared before the state court judge and he did not represent the pro se party in the bankruptcy case. The court of appeals held that Rule 3.03 (a)(1) must be read in conjunction with Rule 8.04(a)(1) and that 3.03 (a)(1) applies to an attorney who knowingly makes a false statement to a tribunal whether or not attorney is advocating for a client.5
B. When representations to a tribunal are material
The Cohn case also held that a representation is material if “it is important to the party to whom it is made in making a decision regarding a particular transaction. Material means a reasonable person would attach importance to and would be induced to act on the information in determining his choice of actions in the transaction in question.”
Cohn also argued on appeal that the trial court erred in concluding his statement was a material fact under Rule 3.03 (a)(1). Cohn argued that a material fact should be defined as a fact of such probative force as would control or determine the result of the litigation. The court of appeals held that the definition of material fact was not intended to be so restrictive. Rather, it found that a “representation in Texas is material if it is important to the party to whom it is made in making a decision regarding a particular transaction. Material means a reasonable person would attach importance to and would be induced to act on the information in determining his choice of actions in the transaction in question.”
The court held that in the context of Rule 3.03(a)(1), materiality encompassed matters represented to a tribunal that the judge would attach importance to and would induce him to act on in making a ruling. This included rulings that might delay or impair the proceedings, or increase the costs of litigation. The court found that the state district court judge had testified that he had attached Importance to, and relied upon, Cohn’s representation in granting the pro se party’s Motion for Continuance.
C. When a representation is made knowingly
In the Cohn case, Cohn also challenged the legal and factual sufficiency of the evidence to support the trial court’s findings in the disciplinary action that his representations were knowingly made, and that he failed to disclose a material fact. The court of appeals stated that for the purposes of the disciplinary rules, a person’s knowledge may be inferred from the circumstances. The court pointed out that there are circumstances in which a failure to disclose is the equivalent of an affirmative misrepresentation. The court also found that the evidence was both legally and factually sufficient to support the trial court’s findings that Cohn acted knowingly.
D. When a lawyer must take remedial measures
Cohn also claimed the trial court erred in finding that he failed to take remedial legal measures in violation of Rule 3.03 (c). Cohn argued that the state district court discovered that the bankruptcy case had not been reopened. Cohn said his inaction had no effect on the state district court’s ability to take remedial legal measures. Cohn further contended that any efforts on his part to notify the state district court would have been futile. The court of appeals held that the fact that the state district court learned the correct status of the case did not relieve Cohn of his obligations under Rule 3.03. The court of appeals stressed that because Cohn never contacted the court, he could not have known whether it was still feasible for the state district court to cancel the resetting and put the case to trial.
E. What constitutes a “tribunal”
In Weiss v. Commission for Lawyer Discipline, 981 S.W.2d 8 (Tex. App. – San Antonio 1998, pet. denied), the Court upheld the trial court’s finding that an attorney violated the rules by making false statements of fact to the grievance committee. An attorney was disbarred for, among other things, violating Rules 3.03 during a grievance committee hearing and threatening a client with criminal prosecution to gain an advantage in a civil matter.
In 1993, Weiss’s Jaw firm was representing Roberto Del Castillo and his son for personal injuries they sustained in an automobile accident. Weiss was also representing Del Castillo’s wife for injuries she sustained in a separate accident. Del Castillo became dissatisfied with Weiss’s representation and filed a grievance against him.
In challenging the disbarment judgment, Weiss contended that the trial court erred in finding that Weiss violated Rules 3.03 (a)(1) and 8.01(a) because there was no evidence or factually insufficient evidence to support its findings. The jury found in Question No. 6 that Weiss knowingly made a false statement of material fact to the tribunal by his testimony in front of or in his written response to the grievance committee regarding 1) a telephone conversation with Del Castillo on May 24, 1993; 2) that page C-4 of Del Castillo’s Complaint was Incorrect; 3) the extent, scope, and nature of Professor Vincent Johnson’s review of Weiss’s television commercials; and 4) the source of Weiss’s authority to sign Del Castillo’s PIP forms.
The grievance committee had asked Weiss if he threatened Del Castillo with criminal prosecution. Weiss unequivocally denied that he had. Weiss nevertheless argued in the disciplinary case in district court that he threatened Del Castillo to keep Del Castillo from stalking him. The appellate court held that the evidence was legally and factually sufficient to support the jury’s findings that Weiss had made a false statement of material fact to the tribunal, i.e. the grievance committee, on this allegation.
F. Whether “half truths” violate the rule
In Weiss, Del Castillo’s Complaint before the grievance committee contained Del Castillo’s recollection of his May 24, 1993 conversation with Weiss. Weiss responded to the grievance committee that Del Castillo’s statements on Page C-4 were not correct. Weiss never related to the grievance committee that the only thing not correct about Del Castillo’s statements were that they were not an exact transcription of the conversation. The appellate court held that the evidence was legally and factually sufficient to support the jury’s findings that Weiss had made a false statement of material fact to the tribunal on this allegation.
Weiss represented to the grievance committee that all of the language in his television ads had been reviewed and approved in writing by an ethics professor. The testimony reflected, however, that the professor had never seen a script or a copy of any of the ads prior to their running. Weiss admitted that he never told the grievance committee that the professor had actually reviewed only the disclaimer language running at the bottom of the screen of the commercials. The appellate court held that the evidence was legally and factually sufficient to support the jury’s findings that Weiss had made a false statement of material fact to the tribunal on this allegation.
Weiss told the grievance committee that he had a written contract with Del Castillo and that it authorized him to represent Del Castillo in his PIP claim. At the time Weiss signed the PIP forms, the contract was no longer in effect because Del Castillo had fired Weiss. Weiss never told the grievance committee of his contention that he had been orally rehired during a heated argument with Del Castillo. The appellate court held that the evidence was legally and factually sufficient to support the jury’s findings that Weiss had made a false statement of material fact to the tribunal and affirmed the judgment of disbarment.
G. Failing to disclose adverse authority or misleading legal argument
Legal argument based on a knowingly false representation of law also constitutes dishonesty toward the tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4) of Rule 3.03, an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which has not been disclosed by the opposing party (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt 3).
Although the rule requiring the disclosure of directly adverse controlling authority is relatively clear, it appears to be honored more in the breach than by its application. Nevertheless, there are a few instances in which courts have discussed the issue. For instance, In re Colonial Pipeline Co., 960 S.W.2d 272 (Tex. App. – Corpus Christi 1997, writ granted on other grounds by 968 S.W.2d 938), the Relators filed a petition for a writ of mandamus complaining of the trial court’s docket control order allowing ten representative plaintiffs in a class of 3,000 plaintiffs to go to trial first in their filings with the appellate court, the Relators completely ignored the controlling case, Polaris Investment Mgt. Corp. v. Abascal, 892 S.W.2d 860 (Tex. 1995), from the Texas Supreme Court addressing the discretion of the trial judge to control complex litigation through docket-control orders. (Polaris holds that docket-control orders are incidental rulings of the court and are not reviewable by mandamus).
Nevertheless, the Relators filed a 37 page brief containing three pages of authorities in the index and did not attempt to explain or distinguish Polaris nor did they mention that Polaris might be considered contrary to their position. The appellate court stated that such failure to disclose pertinent adverse legal authority might well be the failure of Relators to deal in good faith with the court and a breach of professional ethics. The appellate court ordered the Relators to respond in writing and show cause why they should not be sanctioned for violating Rule 3.03.
Subsequently, In re Colonial Pipeline Co., No. 13-97-808-CV, 1998 WL 1021722, at *1 (Tex. App. – Corpus Christi Jan. 22, 1998), the Relators responded to the appellate court’s order to show cause for their failure to cite Polaris. The Relators stated that they should have cited Polaris in their petition, but argued that Polaris was not controlling. The Relators stated that “the point of law on which they sought mandamus was the failure of the trial court to order discovery they had been seeking for some time from the plaintiffs, and as such is more properly akin to another recent supreme court case, Able Supply Co. v. Moye, 898 S.W.2d 766 (Tex. 1995)(orig. proceeding).” The Relators apologized for the inconvenience that they caused the court and the other parties by failing to cite, discuss, and distinguish Polaris in their petition.
The appellate court reviewed Polaris and Moye and concluded that they stood for different propositions, although closely related. The court stated that the “far better practice would have been for the Relators to put the two opinions in juxtaposition, one to another and contrast them, distinguishing the one not supporting their claim for relief, rather than ignoring unfavorable authority.” The court concluded by holding that the Relators’ petition was not groundless or sanctionable.
In Ibarra v. State of Texas, 782 S.W.2d 234 (Tex. App. – Houston [14th Dist.] 1989, no pet.), the State moved to strike the appellant’s brief because the appellant’s counsel had filed numerous identical briefs with the appellate court in the past which had been overruled. The State argued that one of the briefs resulted in a published opinion, Handl v. State, that was dispositive of the points of error complained of by appellant in his brief. The appellant failed to attempt to distinguish or mention Handl even though it controlled the outcome of the appellant’s appeal. Notably, the appellant’s counsel had filed identical briefs with the appellate court approximately 40 times.6 The appellate court pointed out that “[e]ven in the wake of Handl, counsel has not altered his fill-in-the blanks brief” and that “it was aware of no appeal in which the issues presented by the appellant had not been decided adversely to him.” The court of appeals stated that it “could conceive of no purpose for this exercise other than as a means of delaying the imposition of sentence, since the appellant makes no attempt to distinguish his appeal from the cases decided previously.” The appellate court placed the appellant on notice “that any future violations of this type will be reported to the State Bar of Texas for appropriate disciplinary action, and that he may be subject to the exercise of this court’s contempt powers as well.”
One still has to wonder, why did it take 40 filings to reach this result? The result in Ibarra is certainly some indication that the courts have historically been reluctant to sanction lawyers who fail to address adverse controlling authority.
IV. Special Issues in Ex Parte Proceedings
In an ex parte proceeding 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 lawyer for the represented party has a duty to make disclosures of unprivileged material facts known to the lawyer if the lawyer reasonably believes the tribunal will not reach a just decision unless informed of those facts. (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 4).
Although ex parte communications are not the norm in most litigation, they do occur in a variety of settings and are most often a very bad idea. For example, In re J.B.K., 931 S.W.2d 581 (Tex. App. EI Paso 1996, no pet.), an attorney that served as appellate counsel for a party contacted a member of the court’s staff after oral argument and the submission of the matter to the appellate court, but prior to the appellate court’s issuance of its opinion. The telephone conversation with the staff member was for the purpose of inquiring, among other things, as to what counsel’s chances were in the pending case and whether counsel should settle his case prior to the issuance of the opinion.
The court pointed out that ex parte communications are barred in order to ensure that every person who is legally interested in a proceeding is given the full right to be heard according to the law. The court held that private communications between a lawyer in a pending action and a staff member of an appellate court before whom the case is pending concerning the merits of the appeal are ex parte communications not authorized by law. The court stated that to hold otherwise would undermine the integrity of the courts, breed skepticism and distrust, and thwart principles on which our judicial system is based. Curiously, despite this tongue-lashing, no sanction was issued by the court against counsel, but the court did order that the opinion be sent to the Office of the General Counsel of the State Bar of Texas “for investigation and any action it deemed warranted.”
V. Learning Evidence Was False After Placing it into Evidence
It is possible that a lawyer will place testimony or other material into evidence and only later learn of its falsity. Upon ascertaining that material testimony or other evidence is false, the lawyer must first seek to persuade the client to correct the false testimony or to withdraw the false evidence. If the persuasion is ineffective, the lawyer must take additional remedial measures. (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 7).
When a lawyer learns that the lawyer’s services have been improperly utilized in a civil case to place false testimony or other material into evidence, the rule generally recognized is that the lawyer must disclose the existence of the deception to the court or to the other party, if necessary to rectify the deception. The alternative is that the lawyer would be aiding in the deception of the tribunal thereby subverting the truth-finding process which the adversary system is designed to implement. (Texas Disciplinary Rules of Professional Conduct, 3.03 cml 8).
The problem with false evidence, however, often focuses on when or if the lawyer ever had knowledge of the falsity of the evidence he has placed before the court. Under the Rules of Professional Conduct, unknowingly,” “known,” or “knows” denotes actual knowledge of the fact in question. But, a person’s knowledge may be inferred from the circumstances. (Texas Disciplinary Rules of Professional Conduct, terminology).
American Airlines, Inc. v. Allied Pilots Assoc., 968 F.2d 523 (5th Cir. 1992) (see also discussion above at p. 4 in Cohn v. Commission for Lawyer Discipline, 979 S.W.2d 694 (Tex. App.-Houston[14th Dist.] 1998, no pet.), is an example of what can happen in fast paced litigation in which thelawyers are often scrambling to put together evidence to support litigation on a fast track. This case arose out of the December 1990 “sick out”by the Allied Pilots Association (“Union”). TheUnion allegedly engaged in the sick out to wreak havoc on American’s Christmas flight schedules.Attorneys for American filed a complaint forinjunctive relief and damages against the Union, aMotion for TRO, and a motion for a preliminary injunction and memorandum in support. Thepleadings were accompanied by and incorporated by reference seven different written declarations in support of the relief requested. Two of the declarations were not signed. These two declarations were modified versions of earlier declarations. The witnesses had orally approved the contents of the revised declarations, but were unavailable to sign them. Two of American’s three attorneys knew the declarations were not signed. The signature pages of the declarations contained a line typed “executed”followed by a space. One of the attorneys hand wrote the date, “December 26” in the space provided. On the signature line the attorney wrote the symbol “/s/” followed by the names of the witnesses.
On December 26, 1990, Judge McBryde held an in chambers hearing on the TRO motion. All counsel were present. Judge McBryde specifically stated that he was relying on the declarations in making his decision to grant the motion for the TRO. One of American’s attorneys informed the judge that the evidence submitted with the motion was sufficient to support the Issuance of the TRO. None of the attorneys informed Judge McBryde that two of the seven witnesses had not signed their declarations. Judge McBryde issued the TRO.
On or about December 28, 1990, the parties had a telephone conference with the judge where they agreed to postpone the hearing on the preliminary injunction. The Judge told counsel that the declarations could be used at the hearing. All three of American’s attorneys participated in the conference but none of them mentioned that Fowler and Siskin’s declarations had not been signed.
On January 9, 1991, the court learned for the first time that the Fowler and Siskin’s declarations had not been signed. The trial court held a sua sponte contempt hearing on American’s conduct. American’s attorneys attempted to explain that they understood the “/s/” to mean that the declarant had reviewed and approved the statement but had not yet signed it.
Judge McBryde signed a contempt order and made, among others, the following findings of fact and conclusions of law: 1) that the attorneys intended the court to believe that Fowler and Siskin’s declarations had been signed by the declarants and that the signed originals were on file with the court; 2) the attorneys misbehaved in the presence of the court when they failed to disclose the status of the declarations; 3) that two of American’s attorneys had filed false documents with the court; and 4) that all of the attorneys had violated Rule 3.03 of the Texas Disciplinary Rules by making a false statement of material fact to the court arid by offering and using evidence they knew to be false. The trial court found American’s attorneys in contempt of court, in violation of Rule 11, and in violation of various local and state disciplinary rules. The trial court fined Havermann and Mellen, two of American’s three attorneys, $6,000 each for their contempt convictions. Havermann was also fined $6,000 for violating Rule 11. Both attorneys were stricken from the record as attorneys for American and were barred from appearing before the Northern District of Texas in any matter for six months. The court imposed the six-month suspension for violating a local rule.
The attorneys appealed contending that their actions did not constitute unethical behavior under the Texas Disciplinary Rules. The Fifth Circuit upheld the trial court’s judgment finding that the appellants had violated Rule 3.03. In so holding the court stated:
counsel presented the declarations in a form that implicitly represented to the court that the signed declarations were on file. This was not true. Counsel nevertheless urged the court to rely on these declarations. Counsel therefore made false statements of material fact and offered and used evidence they knew to be false.
The Fifth Circuit affirmed In part and reversed in part the court reversed the criminal contempt convictions for procedural and substantive defects and upheld the trial court’s findings that American’s attorneys violated various local and state disciplinary rules and violated Rule 11.
Havermann and Mollen also argued that the Texas Disciplinary Rules did not provide a basis for sanctions by the district court because Local Rule 13.2 governed their conduct The appellate court rejected this argument, stating that It was not convinced that the district court could not look to the Texas Disciplinary Rules to define behavior for the purposes of Its local rule. The court held that “counsel’s behavior was unethical under any standard the district court may have chosen to judge it by.”
The appellate court did not address the six-month suspension because it had run by the time the opinion was written. In upholding the trial court’s remaining findings, the appellate stated “[g]iven the gravity of Havermann and Mellen’s misconduct, the district court did not abuse its discretion by fining Havermann $6,000 under Rule 11 or by striking Havermann and Mollen as attorneys of record for American for violating the court’s local rules.
False filings have arisen in other contexts. For example, a lawyer was sanctioned for filing false information in a bankruptcy proceeding. In re MFLEX Corp., 172 B.R. 854 (W.O. Tex. 1994), an attorney filed a fee application seeking reimbursement of his expenses. The Bankruptcy Code requires an attorney representing a debtor to file a statement of compensation paid or agreed to be paid by the debtor to the attorney. The attorney failed to disclose that he had received a pre-petition retainer in an amount of $5,000.00 and a post-petition tee in the amount of $5,000.00 from the debtor. In disallowing the attorney’s fee application in its entirety, the court stated that “Applicant has failed in many respects to make proper disclosure as required by the Bankruptcy Code, Bankruptcy Rules, and Texas Disciplinary Rules of Professional Conduct.” The court stated that that the intentional filing of a false bankruptcy application or other pleading is a blatant violation of the obligation of candor to the court The court further held that the when an attorney for the trustee intentionally misrepresents facts to the court in a tee application or related proceedings, a mere reduction in fees would clearly be an inadequate deterrent.
VI. Anticipated False Evidence
On occasion, a lawyer may be asked to place into evidence testimony or other material that the lawyer knows to be false. Initially in such situations, a lawyer should urge the client or other person involved not to offer false or fabricated evidence. However, whether such evidence is provided by the client or another person, the lawyer must refuse to offer it, regardless of the client’s wishes. (Texas Disciplinary Rules of Professional Conduct, 3.03 cml 5).
If the request to place false testimony or other material into evidence came from the client the lawyer is justified in seeking to withdraw from the case. If the lawyer chooses not to withdraw or is not allowed to do so by the tribunal, the lawyer should again urge the client not to offer false testimony or other evidence and advise the client of the steps the lawyer will take if such false evidence is offered. Even though the lawyer does not receive satisfactory assurances that the client or other witness will testify truthfully as to a particular matter, the lawyer may use the client as a witness to other matters that the lawyer believes will not result in perjured testimony. (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 6).
Occasionally, it is the lawyers who are accused of trying to present false evidence rather than the client the outer-limits of what is permissible advocacy has probably been set in Resolution Trust Corp. v. H.R. “Bum” Bright, 6 F.3d 336 (5th Cir. 1993). In this case, Bright sought a protective order and sanctions against the RTC for the manner in which its counsel interviewed a former savings and loan association employee. It appears that after the third interview by the RTC counsel with the witness, a savings and loan association employee, the RTC’s attorneys asked the witness to return to their offices the following day to sign an affidavit. The following day after the witness showed up, the attorneys made some last minute changes to the draft affidavit one of the RTC’s attorneys warned the witness that the affidavit contained a couple of things they had not discussed with her before, but which the attorneys believed to be true. The attorneys instructed her to read the affidavit carefully. The witness made several changes to the draft affidavit including changes to the substantive claims made in the affidavit. The RTC attorneys questioned the witness extensively about the changes she made and asked her whether she would be willing to reword some of her changes to emphasize that Bright was more directly involved in the alleged wrongful conduct. The witness declined because she did not have personal knowledge of the statements the attorneys wanted her to include in the affidavit the attorneys were not content to accept the witness’s refusal to revise her changes. In an effort to have the witness see the facts their way, the attorneys described their understanding of the facts and presented the witness with Independent evidence to support their interpretation of the events. The witness refused to alter her initial changes to the affidavit. The attorneys incorporated the witness’s handwritten changes into the affidavit, she proofed the new affidavit, made a few changes, and then signed it.
The district court issued an order finding that the appellant attorneys had impermissibly attempted to persuade the savings and loan association employee to sign an affidavit containing statements that the witness had not previously made to appellants. The order disbarred the RTC’s attorneys from practicing before the district judge and disqualified the attorney’s law firm from representing the RTC in the case. The attorneys appealed. The appellate court reversed. The appellate court stated that “it is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arm’s length interview with a witness to attempt to persuade her, even aggressively, that her initial version of a certain fact is not complete or accurate.” The district court never found that appellants asked the witness to make false statements which they knew to be false. Accordingly, the sanctions award was reversed.
A lawyer may refuse to offer evidence that the lawyer reasonably believes is untrustworthy, even if the lawyer does not know the evidence is false. That discretion should be exercised cautiously, however, in order not to impair the legitimate interests of the client where a client wishes to have such suspect evidence introduced, generally the lawyer should do so and allow the finder of fact to assess its probative value. A lawyer’s obligations under paragraphs (a)(2), (a)(5), and (b) of Rule 3.03 are not triggered by the introduction of testimony or other evidence that is believed by the lawyer to be false, but is not known to be so. (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 15).
Rule 3.03 establishes a number of reasonably clear guideposts for counsel to follow in representing clients before tribunals. Various species of lies are condemned, and in some Instances, have carried with their breach harsh remedies. Nevertheless, it remains to be seen whether the particular cry of zealous representation of a client will be outweighed by the interest of the tribunal in honesty, candor and truthfulness in any particular case.
¹ Under the Model Code of Professional Responsibility that existed prior to 1990, one of the rules was that a lawyer had a duty to zealously represent his client within the bounds of the law. SeeModel Code of Professional Responsibility Canon 7 (1983). Under the present Rules of Professional Conduct there is no explicit statement of such a requirement. In contrast, Comment 1 to Rule 3. 03 points out that the advocate’s task is to present the client’s case with persuasive force. Performance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal. This means that the advocate’s duty of candor to the tribunal is placed above the advocate’s task in representing his client with persuasive force. (Texas Disciplinary Rules of Professional Conduct, 3.03 cmt. 1) The discovery of truth is the primary function of the court and a fundamental purpose of the adversary system. See, e.g., U.S. v. Havens, 446 U.S. 620 (1980).
² “Knowingly, Known, or Knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from the circumstances. SeeTex. Disciplinary R. Prof’l Conduct, terminology.
³ “Tribunal” denotes any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy. “Tribunal” includes such institutions as courts and administrative agencies when engaging in adjudicatory or licensing activities as defined by applicable law or rules of practice or procedure, as well as judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend resolution of a particular matter; but it does not include jurors, prospective jurors, legislative bodies or their committees, members or staffs, nor does it Include other governmental bodies when acting in a legislative or rule-making capacity. Texas Disciplinary R. of Prof’l Conduct, terminology.
4 Cohn’s conduct could also fall under the heading that no good deed goes unpunished.
5 Rule 8.04(a)(l) prohibits a lawyer from knowingly violating the Rules of Professional Conduct.
6 It appears that the appellant’s counsel was a solo practitioner.