Continuation of the Duty

Rule 3.3(c) is a single sentence, and it settles two questions the earlier sections left open: how long the lawyer's duties last, and whether client confidentiality can excuse the lawyer from performing them. It reads: "The duties stated in paragraphs (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."¹ Because the paragraph names (a) and (b) together, both features attach to every duty covered so far: the ban on offering evidence the lawyer knows to be false, the duty to take reasonable remedial measures when material false evidence has been offered, and the duty that arises when the lawyer knows a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding.² False testimony and juror bribery therefore share one timetable and one rule on confidentiality.

The first half of the sentence concerns time. The earlier sections set aside the lawyer who learns of a falsehood only after the proceeding is over, and this half says where the duty ends. The second half concerns confidentiality. Rule 1.6 protects information relating to the representation, and a client who refuses to correct a lie leaves the lawyer one effective measure, which is telling the court. If confidentiality could always excuse silence, the duty to remedy a fraud on the court would fail in the cases that most need it. Paragraph (c) resolves the conflict in favor of the tribunal.

The Duty Lasts Until the Proceeding Concludes

Rule 3.3(c) fixes the outer limit of the lawyer's duties in one clause: they "continue to the conclusion of the proceeding."³ The clause cuts in two directions. It keeps the duties alive after the false testimony has been given, so a lawyer who learns of a lie after the witness has left the stand has not missed the window. It also ends the duties at a definite point, so the lawyer is not bound forever. The principle predates the current numbering. The 1983 text of the rule, as quoted in Virzi v. Grand Trunk Warehouse and Cold Storage Co., already said that the duties stated in paragraph (a) continued to the conclusion of the proceeding and applied even if compliance required disclosure of information otherwise protected by Rule 1.6.⁴

The rule's text does not say when a proceeding is "concluded." The Model Rules answer that question through their commentary: a proceeding has concluded when the final judgment has been affirmed on appeal or the time to appeal has expired. The endpoint is easiest to see by following a case in order and asking at each stage whether the duty is still running.

During trial, while evidence is being offered, the duty is live and the lawyer can still correct the record.
After the verdict and the entry of judgment, the duty is still live, because the judgment is not yet final.
While the time to appeal is running, or while a filed appeal is pending, the duty remains live.
When the judgment has been affirmed on appeal, or the time to appeal has expired without one, the proceeding has concluded and the duty ends.

The third stage is where exam facts usually mislead. A verdict feels like the end of the case, but it only starts the period in which the losing side can still attack the result. If an appellate court reverses and remands for a new trial, the judgment was never affirmed, so the proceeding goes on and the lawyer's duties go with it.

The endpoint falls where it does because of what disclosure can accomplish. While the proceeding is open, the tribunal can still act on a correction: it can strike testimony, instruct the jury, decide a post-trial motion differently, or let a reviewing court see the true facts. A lawyer's disclosure at that stage can change the outcome, which is the reason the remedial duty exists. Once the judgment is final, a disclosure has nothing left to repair. A duty that ran on anyway would make the lawyer an informant against a former client, who would have no pending case in which candor could help anyone. A calendar-based endpoint also lets the lawyer tell from the docket whether the proceeding is still open.

The next scene involves the same kind of lie, told at trial about a central fact. Only the date on which the lawyer learns of it changes.

The two scenes differ in one respect only: when the lawyer comes to know. In both, the lie was told at trial, so the date of the falsehood does not matter. What matters is when the lawyer learns of it, measured against the end of the proceeding. A lawyer who learns during the proceeding must act, and one who learns afterward is outside the rule, however much she wishes the truth had surfaced sooner.

States may phrase the duration differently. Florida's version, which cites its confidentiality rule as rule 4-1.6, says its duties continue "beyond the conclusion of the proceeding."⁵ An answer should apply the Model Rule endpoint unless the question names a jurisdiction.

Confidentiality Yields to Candor

The second clause of Rule 3.3(c) answers the question that every remedial duty eventually raises: what happens when the only way to perform the duty is to reveal something the lawyer would otherwise have to keep secret? The duties in paragraphs (a) and (b), the rule says, "apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."⁷ The reference to Rule 1.6 carries weight because the confidentiality rule is wide. It protects all information relating to the representation, whatever its source, and not only what the client told the lawyer in confidence.⁸ Without paragraph (c), a lawyer who learned that a client had lied under oath would face two commands pointing in opposite directions: silence from Rule 1.6 and correction from Rule 3.3. The clause ranks the two, and in this setting the tribunal's claim comes first.

The ranking follows from what each duty is for. Confidentiality exists so that a client can consult a lawyer candidly about the client's legitimate affairs, and a client's wish to use the lawyer's silence to keep a deception of the court in place is not one of those affairs. The remedial sequence shows why the ranking has to be firm. When the client refuses to correct the false evidence, persuasion has failed, and withdrawal would leave the testimony in the record, so disclosure is frequently the only measure that still reaches the tribunal. If Rule 1.6 could veto that measure, the duty to take remedial measures would fail where it is needed most. The lawyer's obligation to take reasonable remedial measures is therefore mandatory even when the only effective remedy is disclosure of confidential or privileged information.⁹

The mandatory character sets this override apart from the exceptions inside Rule 1.6 itself. Those exceptions are permissions. They describe situations in which a lawyer may reveal confidential information, and a lawyer who declines to use one has broken no rule. Rule 3.3 says shall, so a lawyer who has reached the end of the remedial sequence has no choice left to make.¹⁰ Rule 3.3 requires the lawyer to take reasonable remedial measures, including disclosure of information otherwise protected by Rule 1.6 if necessary, when the lawyer comes to know that material evidence presented to a tribunal was false or that a person has engaged or will engage in criminal or fraudulent conduct with respect to the proceeding.¹¹ A question asking whether a lawyer may reveal a confidence is a Rule 1.6 question. A question asking whether the lawyer must reveal it, because false evidence is in the record, belongs to Rule 3.3.

A concurring opinion in Nix v. Whiteside described the same hierarchy. It observed that the Model Code and the Model Rules do not merely authorize disclosure of client perjury but require it, and that Rule 3.3 imposes a duty to disclose the falsity of evidence even when disclosure compromises client confidences.¹² The same opinion drew the line that matters here. A lawyer's duty of confidentiality, it said, totally covers a client's admission of guilt, but it does not extend to a client's announced plans to engage in future criminal conduct, and perjury in this setting is indistinguishable in substance from threatening or tampering with a witness or a juror.¹³ Paragraph (b) puts that line to work. A lawyer who knows that a person intends to engage in criminal or fraudulent conduct related to the proceeding must take reasonable remedial measures, including disclosure to the tribunal if necessary, and the client's having confided the plan is no shield.¹⁴ The statement concerns crimes aimed at the proceeding. A client's plan to commit some unrelated crime lies outside Rule 3.3 altogether, and what the lawyer may do with it is decided by the permissive provisions of Rule 1.6.¹⁵

The override is justified only by the harm to the tribunal, so it is narrow, and the quickest way to test its edge is to set two secrets side by side. The question to ask is whether revealing the secret is how the lawyer repairs a falsehood or fraud already directed at the proceeding. If it is, the override applies. If the secret has no connection to false evidence or to a fraud on the tribunal, confidentiality remains fully in force.

Both clients confided something unfavorable about what they did, and both lawyers are equally certain of it. The answers differ because the first client's secret is the proof that sworn testimony was false, so telling the court is the only way to correct what the factfinder is relying on. The second client's secret is an admission that the lawyer is not using to deceive anyone, and confidentiality totally covers an admission of guilt.¹⁶ Even in the first scene the override is limited by its own trigger, since it applies when compliance requires disclosure and the remedial duty calls for disclosure only if necessary.¹⁷ The lawyer reveals what is needed to correct the falsehood and keeps the rest of the client's information protected, because the reason for confidentiality still holds for everything else the client has said.

The override has never been uncontroversial. It reverses, at least in part, the priority that the earlier Model Code gave confidentiality over the duty to correct client untruths, and several states hesitate or decline outright to require disclosure of confidential information in criminal cases.¹⁸ The Model Rule states the remedial duty without a criminal-case exception.¹⁹ An answer applying the Model Rules should therefore state the override in full, while an answer set in a state that has declined to apply it in criminal cases follows that state's choice. On an exam, the task is to identify which version of the rule the question assumes.