Md. R. Att'y 19-303.3
Md. R. Att'y 19-303.3
COMMENT
[1] This Rule governs the conduct of an attorney who is representing a client in the proceedings of a tribunal. See Rule 19-301.0(p) (1.0) for the definition of "tribunal. It also applies when the attorney is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition. Thus, for example, subsection (a)(4) of this Rule requires an attorney to take reasonable remedial measures if the attorney comes to know that a client who is testifying in a deposition has offered evidence that is false.
[2] This Rule sets forth special duties of attorneys as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. An attorney 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 an attorney 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 attorney must not allow the tribunal to be misled by false statements of law or fact or evidence that the attorney knows to be false.
Representations by an Attorney--[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 attorney. Compare Rule 19-303.1 (3.1). However, an assertion purporting to be on the attorney's own knowledge, as in an affidavit by the attorney or in a statement in open court, may properly be made only when the attorney 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 19-301.2(d) (1.2) not to counsel a client to commit or assist the client in committing a fraud applies in litigation. Regarding compliance with Rule 19-301.2(d) (1.2), see the Comment to that Rule. See also the Comment to Rule 19-308.4(b) (8.4).
Misleading Legal Argument--[4] Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal. An attorney is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authorities. Furthermore, as stated in subsection (a)(3) of this Rule, an advocate has a duty to disclose directly adverse authority in the controlling jurisdiction which 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.
False Evidence--[5] When evidence that an attorney knows to be false is provided by a person who is not the client, the attorney must refuse to offer it regardless of the client's wishes.
[6] When false evidence is offered by the client, however, a conflict may arise between the attorney'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 attorney 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 attorney must take reasonable remedial measures.
[7] Except in the defense of a criminal accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure 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 attorney cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement. See Rule 19-301.2(d) (1.2). Furthermore, unless it is clearly understood that the attorney will act upon the duty to disclose the existence of false evidence, the client can simply reject the attorney's advice to reveal the false evidence and insist that the attorney keep silent. Thus the client could in effect coerce the attorney into being a party to fraud on the court.
Perjury by a Criminal Defendant--[8] Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. While it is agreed that the attorney should seek to persuade the client to refrain from perjurious testimony, there has been dispute concerning the attorney's duty when that persuasion fails. If the confrontation with the client occurs before trial, the attorney ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other attorney is available.
[9] The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the attorney knows that the testimony is perjurious. The attorney's effort to rectify the situation can increase the likelihood of the client's being convicted as well as opening the possibility of a prosecution for perjury. On the other hand, if the attorney does not exercise control over the proof, the attorney participates, although in a merely passive way, in deception of the court.
[10] Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a narrative without guidance through the attorney's questioning. This compromises both contending principles; it exempts the attorney from the duty to disclose false evidence but subjects the client to an implicit disclosure of information imparted to the attorney. Another suggested resolution, of relatively recent origin, is that the advocate be entirely excused from the duty to reveal perjury if the perjury is that of the client. This is a coherent solution but makes the advocate a knowing instrument of perjury.
[11] The other resolution of the dilemma is that the attorney must reveal the client's perjury if necessary to rectify the situation. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with an attorney. However, an accused should not have a right to assistance of an attorney in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence. See Rule 19-301.2(d) (1.2).
Remedial Measures--[12] If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done--making a statement about the matter to the trier of fact, ordering a mistrial or perhaps nothing. If the false testimony was that of the client, the client may controvert the attorney's version of their communication when the attorney discloses the situation to the court. If there is an issue whether the client has committed perjury, the attorney cannot represent the client in resolution of the issue, and a mistrial may be unavoidable. An unscrupulous client might in this way attempt to produce a series of mistrials and thus escape prosecution. However, a second such encounter could be construed as a deliberate abuse of the right to an attorney and as such a waiver of the right to further representation.
Constitutional Requirements--[13] The general rule--that an advocate must disclose the existence of perjury with respect to a material fact, even that of a client--applies to defense attorneys in criminal cases, as well as in other instances. However, the definition of the attorney's ethical duty in such a situation may be qualified by constitutional provisions for due process and the right to an attorney in criminal cases. Section (e) of this Rule is intended to protect from discipline the attorney who does not make disclosures mandated by sections (a) through (d) of this Rule only when the attorney acts in the "reasonable belief that disclosure would jeopardize a constitutional right of the client. For a definition of "reasonable belief, see Rule 19-301.0(1) (1.0).
Duration of Obligation--[14] A practical time limit on the obligation to rectify the presentation of false evidence has to be established. The conclusion of the proceeding is a reasonably definite point for the termination of the obligation. After that point, however, the attorney may be permitted to take certain actions pursuant to Rule 19-301.6(b)(3) (1.6).
Refusing to Offer Proof Believed to Be False--[15] Generally speaking, an attorney has authority to refuse to offer testimony or other proof that the attorney reasonably believes is false. Offering such proof may reflect adversely on the attorney's ability to discriminate in the quality of evidence and thus impair the attorney's effectiveness as an advocate. In criminal cases, however, an attorney may, in some jurisdictions, be denied this authority by constitutional requirements governing the right to an attorney.
Ex Parte Proceedings--[16] 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 attorney for the represented party has the correlative duty to make disclosures of material facts known to the attorney and that the attorney reasonably believes are necessary to an informed decision.
Model Rules Comparison: Rule 19-303.3 (3.3) has been rewritten to retain elements of existing Maryland language and to incorporate some changes from the Ethics 2000 Amendments to the ABA Model Rules.