The attorney-client privilege is one of the most sacred principles in our profession and is continually ingrained in us throughout our legal education — in law school, in the proverbial trenches and in continuing legal education courses. It is one of the bedrock principles upon which our legal system was founded. We all know and understand why. Without such a principle, our clients would feel uncomfortable telling us the truth and disclosing sensitive information, and they would be unprotected if they did so. Nevertheless, there is one principle that trumps the attorney-client privilege: Candor toward the tribunal.
The requirement for candor toward the tribunal is set forth in Indiana Rule of Professional Conduct 3.3, and it qualifies the attorney-client privilege. See cmt. 2. We all know that we cannot make false statements to the courts and that we have a continuing duty to correct any false statements that we make inadvertently. Ind. R. Prof’l Conduct 3.3(a)(1). We also know that we must disclose authority that is directly on point in a controlling jurisdiction and is not otherwise disclosed. Id. at 3.3(a)(2). It is a no-brainer that we may not offer evidence that we know to be false. Id. at 3.3(a)(2). Take a closer look at (a)(3), however. If the lawyer offers evidence, either herself or through a witness or her client, and she “comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Id.
This duty to take remedial measures continues in Rule 3.3(b), which states, “A lawyer who represents a client in an adjudicative proceeding (including a deposition) and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” See Ind. R. Prof’l Conduct 3.3, cmt. 1. The Indiana Supreme Court further describes the extent of attorneys’ duties in Rule 3.3(c), which says, “The duties stated in paragraph (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.”
Notice that the rules qualify the disclosure to the tribunal with “if necessary.” The comments to Rule 3.3 set forth the procedure for taking reasonable remedial measures. Once the attorney’s duty to take remedial measures is triggered, the attorney should “remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.” Ind. R. Prof’l Conduct 3.3, cmt. 10. However, if that attempt fails, then the attorney must seek to withdraw, unless the withdrawal will not undo the effect of the false evidence. See id. at cmt. 10 & 15 and R. 1.16(a)(1). If withdrawal will not undo the effect, then attorney “must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.” Ind. R. Prof’l Conduct 3.3, cmt.10.
The Indiana Supreme Court acknowledges the extreme impact that the candor toward the tribunal duty can have upon the attorney-client relationship and/or the client if the attorney is required to disclose privileged information to a court because she has determined that the impact of a fraud upon the court is worse. “The disclosure of a client’s false testimony 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 lawyer cooperates in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement.” Ind. R. Prof’l Conduct 3.3, cmt. 11. The court continues, “Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process … .” Id. at cmt. 12. In other words, candor to the tribunal trumps the attorney-client relationship and the attorney-client privilege.
This can be a very difficult duty to execute when it is triggered because it seems to go against all that we have been taught about our obligations to our clients. The best practice tips that can be offered for such a situation are to be aware that this is what the Indiana Supreme Court expects, try to anticipate when these issues may arise and attempt to address them before they have a chance to occur. When you do address your obligations to the court with your client, make sure that your client understands the enormity of what you are saying and grasps the impact it will have on him if you do have to disclose. Follow up the conversation with a certified, confidential letter to the client confirming your conversation. If your withdrawal would cure the effect of the false evidence, make sure that you do not disclose privileged information in your petition to withdraw. Remember, you have to follow the steps before the disclosure becomes “necessary,” which means that you cannot disclose in that circumstance unless and until the court denies you permission to withdraw. See Ind. R. Prof’l Conduct 3.3, cmt. 10 & 15, and Rule 1.6.•
Jamie Oss is a partner in the Michigan City firm of Huelat Mack & Kreppein, a director of the DTCI and chair of the DTCI Rules Committee. The opinions expressed in this article are those of the author.