Falsified Evidence and Inducements

Falsified Evidence and Inducements

Rule 3.4(b) forbids a lawyer to falsify evidence, to counsel or assist a witness to testify falsely, and to offer a witness an inducement that is prohibited by law.¹ Rule 3.4(a), covered above, guards evidence that already exists against unlawful obstruction, alteration, destruction, and concealment.² Subsection (b) operates earlier in the life of the evidence, at the moment a document is made or a witness's account takes its final shape.

The three prohibitions fall into two groups. The first two target a single danger: a lawyer who manufactures or shapes untrue evidence, whether by creating an exhibit or by guiding a witness's words. The lawyer need not speak the falsehood personally, because even when someone else will make the false representation, the lawyer may not participate in it or condone it.³ The third prohibition targets a different danger. A witness's testimony may be true, yet a benefit promised to the witness gives that witness a reason to favor one side. That clause also borrows its content from outside law, since it reaches only an inducement “prohibited by law,” just as Rule 3.4(a) turns on the word “unlawfully.”⁴

Falsifying Evidence

The first two clauses of Rule 3.4(b) work on different raw material. The first covers things a lawyer makes or alters: a forged letter, a backdated contract, an exhibit doctored to say what the original did not. The second covers the account of a human witness, which a lawyer can shape through rehearsal and suggestion without touching a single document. In both, the lawyer's own participation is the violation.⁵

The ban on falsifying evidence runs in two directions. A lawyer may not offer fabricated materials on behalf of the client's own case. A lawyer also may not deliver counterfeit evidence to another person in the hope that it will be accepted as genuine, with the result that litigation may be averted or the other party may adopt the evidence and present it in its own case.⁶ The second direction is easy to miss, because the lawyer offers nothing to a tribunal. The counterfeit travels through the opposing party, who may rely on it in settlement talks or build it into a pleading, and an honest litigant ends up vouching for the lawyer's forgery.

A neighboring rule covers presentation. Rule 3.3(a)(3) forbids a lawyer to offer evidence the lawyer knows to be false, and Rule 3.4(b) adds that the lawyer may not participate in manufacturing it.⁷ The two rules divide the work by timing. Rule 3.3 reaches the lawyer who puts false evidence before the tribunal, and Rule 3.4(b) reaches the lawyer who made it, whether or not anything has yet been offered to anyone. Neither depends on whose mouth speaks the falsehood. Whatever the client wants, the lawyer must refuse to offer a forged document or to call a witness the lawyer knows will give perjured or other false testimony.⁸

Students often analyze the second scene only under Rule 3.3 and conclude that nothing reached a tribunal, so no violation occurred. The manufacturing is the wrong, and delivery to the opposing party is simply how the counterfeit enters the case, so the analysis belongs under Rule 3.4(b).

The client's wishes cannot change the answer, and Nix v. Whiteside shows why. A criminal defendant intended to testify falsely, and his lawyer persuaded him not to, threatening to disclose the perjury to the court. The Supreme Court held that this forceful and successful persuasion did not violate the defendant's Sixth Amendment right to the effective assistance of counsel.¹⁰ Nix was a constitutional case, not a disciplinary one, so it supplies the premise behind Rule 3.4(b) rather than applying the rule. The Court described that premise in its account of the profession's standards: a lawyer's ethical duty to advance the client's interests is limited by an equally solemn duty to comply with the law and the standards of professional conduct, and the standards specifically ensure that the client may not use false evidence.¹¹ The lawyer's special duty to prevent and disclose frauds upon the court grows from the recognition that perjury is as much a crime as tampering with witnesses or jurors by promises and threats, and that it undermines the administration of justice.¹²

Criminal exposure stands behind the professional duty. A lawyer who aids false testimony by questioning a witness when perjurious answers can be anticipated risks prosecution for subornation of perjury under the statute the Court cited.¹³ Florida states the duty broadly. The lawyer's duty not to assist witnesses, including the lawyer's own client, in offering false evidence stems from the Rules of Professional Conduct, Florida statutes, and caselaw.¹⁴ The client is therefore a witness for this purpose like any other.

Witness preparation is where the assistance clause is hardest to apply, because honest preparation and coaching can look alike from the outside. Nothing in the rule keeps a lawyer from reviewing a witness's earlier statement, explaining why a fact matters to the claim, and asking questions that test what the witness remembers. What the rule forbids is counseling or assisting the witness to testify falsely.¹⁵ The practical line falls at whose memory supplies the content. In preparation the witness's own recollection supplies the facts and the lawyer sharpens them. In coaching the lawyer supplies the facts and the witness repeats them.

The line is hardest to hold when a claim rests on a conversation held years earlier. In the funeral-promise facts drawn from Earle v. Angell, a client reports that his aunt told him four years ago that she wanted him to attend her funeral and would pay him five thousand dollars, and he asks whether he can recover from her estate.¹⁶ Whether the promise was a bargain for his attendance depends on exactly what she said and what he answered, details people recall imperfectly after years. A lawyer who opens the interview with a lecture on what contract law requires tells the client which recollections would win before the client has said what happened, and the account that follows may bend toward the doctrine.

The opposing instinct has force, because clients are entitled to an explanation of the law and Rule 3.4(b) does not forbid giving one. The line falls at what the explanation contains. Telling the client that the claim turns on whether the aunt wanted his attendance in exchange for her promise informs him of the stakes. Asking whether she asked him to come, and then approving the answer the claim needs, manufactures the memory. Drawing out the client's own account first is the safer order, because it leaves none of the lawyer's suggestion in the account.

An exam stem in which a lawyer prepares a witness for deposition is asking whether the lawyer shaped the witness's memory or only tested it.

The two scenes differ in who supplied the content of the recollection. Explaining why a date matters, reviewing a statement, and probing for what the witness actually remembers leave the testimony in the witness's own words. Supplying the account, or the names in it, makes the lawyer the author of the evidence.

Paying Witnesses

The third prohibition in Rule 3.4(b) bars a lawyer from offering a witness an inducement that is prohibited by law.¹⁹ Where the first two prohibitions attack falsity directly, this one attacks the incentive that makes a slanted account worth giving. The Model Rule leaves the content of the ban to outside law. Florida's version, which governs the principal case below, forbids any inducement to a witness except three listed payments, and that makes the line easier to see.

Florida's text permits a lawyer to pay a witness's reasonable expenses in attending or testifying at proceedings, a reasonable, noncontingent fee for an expert witness's professional services, and reasonable compensation for the earnings a witness loses by preparing for, attending, or testifying.²⁰ Each category reimburses something the witness spent or gave up, or pays for professional time, and none depends on what the witness says. The word noncontingent explains the expert exception. A fee fixed in advance for hours worked buys time and skill, while a fee that rises if the client wins ties the expert's income to the result and gives the expert a stake in the verdict.

The history of the rule shows that it reaches payments for truthful testimony too. In Florida Bar v. Cillo, a lawyer was accused of paying money to a former client to induce him to dismiss a bar complaint, and the court asked whether it is misconduct to induce a witness to tell the truth with money. No rule then governed such a situation, so the court imposed no discipline. It worried, though, that compensation beyond costs could damage credibility and the fact-finding function, and it directed that a rule be developed making any compensation improper unless stated conditions were met.²¹ The harm the rule targets is the temptation the payment creates, and that temptation exists whether or not the witness lies.

The central application is Florida Bar v. Wohl, in which the Florida Supreme Court applied the rule to Wohl, one of Bruce Winston's lawyers, over an agreement with a woman named Kerr. Kerr had worked at the family business and knew how it operated and what Bruce's adversary Ronald had done, and Bruce's aim was to recover assets and damages tied to Ronald's alleged diversion of assets.²² The agreement called her services “assistance.” It paid her $25,000 for the first fifty hours, a bonus of between $100,000 and more than $1,000,000 depending on “the usefulness of the information provided,” and $500 an hour for additional hours. The bonus and the extra hourly pay came due only after a “culmination event,” meaning that Bruce had won some relief against Ronald.²³

The referee treated the bonus as especially significant. Kerr could earn it only if Bruce reached a culmination event, so every incentive pushed her information toward the side paying her. The referee concluded that such provisions go to the very heart of the evil the rule targets, “the temptation of a witness to color his or her testimony,” and called the agreement an inducement that went far beyond reasonable expenses.²⁴ The court held that the findings supported a violation, because none of the rule's exceptions applied.²⁵

Wohl's main defense was a label. He argued that the lawyers regarded Kerr as a consultant, not a witness, until she told them about a missing diamond necklace.²⁶ The court found the timing beside the point. Kerr was a fact witness because she had personal knowledge of how the business worked and of Ronald's actions, the agreement itself said she would help identify and recover assets lost to misconduct, and she was to be paid for what she had witnessed. As the referee put it, paying an individual who has personal knowledge of the facts is paying a witness, whether or not that person is expected to testify.²⁷ Events confirmed that the label was wrong. Kerr gave deposition testimony in the Florida estate proceedings, and the estate's personal representative listed her as a witness, followed by Wohl himself.²⁸

A second defense fared no better. Wohl claimed that Bruce's other lawyers and Kerr's own lawyers handled most of the negotiation. The referee found that Wohl wrote to the other attorneys suggesting changes, received drafts, and discussed the terms with them by telephone, and concluded that he could not do through others what he could not do himself.²⁹ That principle keeps the inducement clause from becoming a formality. Without it, a lawyer could route every offer through co-counsel or through the witness's own lawyer.

An exam stem that describes a paid “consultant” is asking whether the label matches the function. Two questions decide it: does the person know facts about the dispute from personal experience, and does the pay move with the usefulness of what the person says or with the client's success? If both answers are yes, the payee is a fact witness being paid beyond expenses, and it does not help that no one plans to call the person at trial.

The discipline holding shows how seriously the court took the violation. The referee recommended an admonishment for minor misconduct and probation, and the Bar sought a ninety-day suspension.³¹ The court held that an admonishment had no reasonable basis in existing case law, which had produced suspensions.³² In Florida Bar v. Machin, the court suspended a lawyer for ninety days for offering to set up a $30,000 trust fund for the minor child of a victim in a criminal case if the victim agreed not to testify at the client's sentencing hearing.³³ Machin, like Wohl, had no prior disciplinary record, and unlike Wohl he disclosed his agreement to the state attorney, the sheriff, and the victim assistance representative. He was suspended anyway.³⁴ The court also pointed to Florida Bar v. Jackson, another decision in which money tied to testimony led to a suspension of roughly three months.³⁵ A lawyer who helps structure a payment to a fact witness that depends on usefulness or success should therefore expect the sanction to be measured against suspensions, not warnings.