Client Lies: Texas Bar Issues Opinion 692 to Address A Lawyer’s Responsibility
A client lies during a deposition. The lawyer know…what should the lawyer do? Recently, the Professional Ethics Committee for the State Bar of Texas published Opinion No. 692, regarding a lawyer’s requirement to correct false statements made by the lawyer’s client during a deposition and concluded that a lawyer does not necessarily need to do so.
The Opinion specifically concerns false statements made by a client “in response to questioning by the opposing party’s counsel during a deposition[.]” In the fact scenario presented, the defendant in a car crash case admitted to his attorney that he had been looking down at his phone during the accident. But during the defendant’s deposition, when asked about whether he had been looking at his phone by plaintiff’s counsel, the defendant lied and said he had not been. When prompted to correct the falsehood by his attorney during a break, “the client refused and instructed his lawyer to remain silent and do nothing to correct the falsehood.”
Acknowledging that “[q]uestions such as [a lawyer’s duty to correct the defendant’s falsehood] ‘present very difficult issues’ because the Texas Disciplinary Rules of Professional Conduct ‘attempt to balance . . . a lawyer’s duty of candor to the court and . . . a lawyer’s duty of loyalty to and zealousness on behalf of a client, along with a duty to maintain confidential client information[,]” the Committee stressed that balancing such competing obligations “is often a fact specific inquiry.”
The Opinion cites to Texas Disciplinary Rule of Professional Conduct 3.03 to provide “baseline duties in this balance between a lawyer’s duty of candor and duties to the client.” Those duties under Rule 3.03 include not knowingly “mak[ing] a false statement of material fact or law to a tribunal”; “fail[ing] to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; or “offer[ing] or us[ing] evidence that the lawyer knows to be false.” The Rule additionally states that, where lawyers become aware of the falsity of material evidence, “the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence.”
According to the Opinion, under the facts presented, Texas Rule 3.03 does not require the lawyer in these circumstances to disclose the client’s cross-examination perjury[.]” However, the Committee cites to comment 13 to Texas Rule 3.03 to stress that a lawyer in such a situation “should urge that the false evidence be corrected or withdrawn” and “alert the client to the potential civil and criminal implications of his false testimony.”
Importantly, the lawyer “may not use the false deposition testimony in any way to advance the client’s case” such as by submitting the deposition testimony as summary judgment evidence. And where a client refuses to correct his false testimony, a lawyer may have professional discretion to close the true facts under a provision of Texas Rule 1.05(c), which outlines instances in which a lawyer may reveal confidential information.
For other information on dealing with clients and fraud in other situations see our coverage here.
