Candor Flashcards
What are a lawyer’s duties regarding known false evidence?
- Attorneys shall not knowingly make a false statement of fact or law to a tribunal.
- Attorneys shall not offer evidence that they know to be false
- Attorneys must disclose controlling authority that they know is adverse to their clients position if this authority has not been disclosed by the opposing counsel.
What are a lawyer’s duties when they come to know of falsity?
An attorney must take remedial measures, including correcting false statements of law or fact that they have sponsored and which have been made to the tribunal through the conclusions of the proceedings (including through the resolution of appeals).
When does a lawyer have a duty to correct false statements/representations/evidence?
- If the laywer, client, or lawyer’s witness has offered the evidence in the proceeding
- If the evidence is material to the proceeding
- If the laywer learns it is false and
- If the proceeding has not concluded (including appeals)
A lawyer may refuse to offer evidence that they reasonably believe is false, except for testimony of a criminal defendant.
Does a lawyer have to sponsor testimony that they reasonably believe is false?
No, the lawyer may refuse to offer such evidence unless it is the testimony of a criminal defendant. If an attorney “knows” the testimony of a criminal defendant is false, they can chose not to sponsor it and have the defendant testify in the narrative.
Does a lawyer have a duty to remedy a third party’s bad conduct?
Yes, an attorney shall take reasonable remedial meausres when they represent a client and know of a person who is engaging or has/intends to engage in crime or fraud related to the proceeding.
Does a lawyer need the client’s permission to correct a false statement of material law or fact?
No.
When do proceedings “conclude”?
- When final judgement in the case has been affirmed on appeal
- The time for review on appeal has passed
If a case is still on appeal, it has not concluded.
What is the duty of candor in ancillary proceedings?
i.e. depositions
Same as duty of candor to the tribunal.
An attorney has a duty to correct false statements:
1. If the laywer, client, or lawyer’s witness has offered the evidence in the proceeding
2. If the evidence is material
3. If the laywer learns or knows it is false
4. If the proceeding has not concluded (including appeals)
What is the duty of candor in ex parte proceedings?
This duty is heightened. During an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision.A lawyer cannot withhold facts.
Does a lawyer have a duty of truthfulness to others?
Yes.
When it comes to the duty of truthfulness to others, what may a lawyer not do?
An attorney cannot:
1. knowingly make a false statement of material fact or law
2. make a misrepresentation that affirms/incorporates a known false statement
3. make a misrepresentation that is partially true or misleading
4. make a misrepresentation that is false due to an omission
5. in extreme cases fail to disclose material facts necessary to avoid assisting a client’s crime or fraud.
When it comes to the duty of truthfulness to others, what may a lawyer do?
- convey exaggerated belief, opinion, or judgment in negotiation
- make subjective statement not considered material fact—eg: about the
price or value estimate of the subject of transaction or of a party’s desired settlement claim - withhold relevant facts that undermine client’s position (exception for ex parte hearings)
When it comes to candor, when is withdrawal appropriate?
Sometimes appropriate when the lawyer and client cannot agree about the lawyer’s obligation to disclose the information, however, the lawyer still has an obligation to correct the false information, even if they have withdrawn.
What is the duty of candor in legislative proceedings?
The same, lawyer cannot knowingly make a false statement, and there is a duty to correct a false statement of material fact previously made.
Puffery
When negotiating a lawyer cannot make a false statement, but they can:
1. convey an exaggerated belief, opinion, or judgement
2. make a subjective statement about price, value, or desired settlement, and
3. withhold facts that may undermine their client’s position.
