The Knowledge Requirement

The Knowledge Requirement

One adverb limits every prohibition in Rule 3.3(a): a lawyer shall not knowingly do what the rule lists.¹ A false statement of fact or law violates paragraph (a)(1) only when the lawyer knows it is false.² Adverse authority triggers the disclosure duty of paragraph (a)(2) only when it is “known to the lawyer to be directly adverse to the position of the client.”³ Each later section of this chapter, on false statements, correction, and adverse controlling authority, therefore opens with the same question: what did the lawyer know?

The knowledge standard marks the boundary between ethics and professionalism. Ethics sets the minimum standard of conduct, and professionalism reflects the higher aspirations the bar holds for its members.⁴ An appellate lawyer with an empty mind but a pure heart, one who simply fails to find the controlling authority and cite it, might not violate the rule as an ethical matter, yet that lawyer would certainly fail the expectations of bench and bar for professional competence.⁵ A lawyer who aims to excel and to win the client’s case gains nothing from the excuse, because pure oversight is not enough.⁶

The two briefs look identical, but the lawyers stand in different places. Marsh knew of directly adverse authority from the controlling jurisdiction and let it go undisclosed, which is what (a)(2) forbids. Ito lacked knowledge, so she has not violated the candor rule; her incomplete research fails the competence expectations of the profession, but no candor charge lies. In an issue-spotting answer, decide first whether the lawyer knew, and treat an honest miss as a competence problem and not a Rule 3.3 violation.

Suspicion does not meet the standard, because to suspect is not to know. A hunch about a client, or a feeling that an account is off, gives a lawyer a reason to investigate; it does not establish that anything is false.

Okafor suspects, and Dunn knows. Only Dunn has knowingly made a false statement, so only his brief falls within (a)(1). Okafor’s unease is a reason to investigate before she vouches for the date in her own voice, and the next point explains why that matters.

The knowledge standard also governs what a lawyer may personally guarantee. Lawyers frequently make statements to a tribunal, whether explaining a delay, giving background for a request for judicial discretion, or describing the status of the case. Comment 3 to Rule 3.3 sets the standard for any such assertion that purports to rest on the lawyer’s own knowledge, as in an affidavit by the lawyer or a statement in open court. It may properly be made only when the lawyer knows it is true or believes it to be true on the basis of a reasonably diligent inquiry.⁷

The Iowa Supreme Court applied that expectation firmly in Ramey, a disciplinary proceeding against a prosecutor who had made a false statement to the court in connection with an exhibit. The court called the conduct “unacceptable” even assuming that the prosecutor had failed to recall the discrepancy, that he had not made the statement in order to secure improper admission of the exhibit, and that he had not intended to deceive the court.⁸ Intent to deceive was therefore not the dividing line. As Professor Peter Henning observes, because a lawyer’s honesty is so important, “courts will sanction lawyers for dishonest acts that have no effect on the determination of the truth.”⁹

In choosing a sanction, the court said the crucial question was whether the false statement was “(1) deliberately misleading so as to call for disbarment; (2) made in reckless disregard of the true facts so as to call for not less than license suspension; or (3) negligently made during the confused heat of trial.” It found that the case “falls somewhere between the first situation and the second” and suspended the prosecutor’s license.¹⁰ The scale shows that deliberate falsehood and reckless disregard of the true facts sit at the severe end, and that a lack of intent to deceive does not rescue a lawyer who vouches without looking.

Both statements were wrong, but only Voss’s was improper when he made it. Brennan acted on a reasonably diligent inquiry and believed what he said, so his misstatement is not a knowing falsehood. Voss put his own word behind a fact he had never checked, and Comment 3 forbids that assurance whether or not the date later proves right. Once Brennan learns of the clerical error, the correction clause of (a)(1) comes into play, a subject taken up in the sections below.