According to the recent New York City Bar Association Committee on Professional Ethics Formal Opinion 2013-2, an attorney who knows that a client or a witness has provided false information in a court proceeding must take reasonable “remedial measures” in accordance with Rule 3.3. Advises
Such remedial measures include disclosing the false evidence in a formal submission to the formerly presiding tribunal or to opposing counsel. Disclosure is required only if the false evidence is “material” and the attorney has actual knowledge of the falsity, as required by Rule 1.0(k).
The Committee rejected the idea that the obligation to disclose lasts forever. The purpose of New York Rule of Professional Conduct 3.3 is to prevent false evidence from misleading the trier of fact. As a result, a “reasonable remedial measure” is only one that has a reasonable prospect of accomplishing this purpose. Therefore, the Committee determined, if it is impossible to disclose the false information to the presiding tribunal or a tribunal that reviews the presiding tribunal’s decisions, there is no longer a duty to disclose.
While the duty to disclose is not a “never-ending” one, this opinion certainly reveals the significance of making a client aware of the risks involved in providing false evidence and of an attorney’s responsibility to remediate such risks when taken.
Click here to read the New York opinion and here to read commentary on the opinion.
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