Also known as: reasonable remedial measure · remedial measures
Written by attorneys · grounded in primary & secondary sources — see below
Steps that a lawyer must take upon learning that material evidence offered in a proceeding is false or that a person has engaged in criminal or fraudulent conduct related to the proceeding. The steps begin with efforts to dissuade the client or witness and may extend to withdrawal or disclosure to the tribunal when necessary to correct the record.
Roland Rhodes represents Robert Rivera in a contract dispute. After Rivera testifies that a key document was signed on a certain date, Rhodes receives an email proving the date was fabricated. Rhodes first urges Rivera to correct the record. When Rivera refuses, Rhodes moves to withdraw and, upon denial, discloses the falsity to the court so the tribunal can address the perjured evidence.
Rita Russell defends Rosa Ruiz on theft charges. Ruiz insists on testifying that she was out of state on the night of the offense, a claim Russell knows is false from prior statements. Russell refuses to elicit the testimony, warns Ruiz of the consequences, and informs the court that she cannot present the evidence, thereby preventing the introduction of perjured testimony without violating her duty of loyalty.
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Rowan Russell represents Redwood Bank in a foreclosure action. After filing, Rowan learns that the bank's officer submitted a forged assignment to support the claim. Rowan directs the officer to withdraw the document. When the officer refuses, Rowan discloses the forgery to the court so the tribunal can prevent the fraudulent conduct from affecting the proceeding.
A lawyer must act when the lawyer knows material evidence offered by the lawyer, the client, or a called witness is false, or when a person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding. The duty begins with dissuasion and may require disclosure if other steps fail.
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No. The obligations under Rule 3.3 end at the conclusion of the proceeding. A lawyer who learns of perjury only after the case concludes has no duty to disclose it.
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Yes. Disclosure of information otherwise protected by Rule 1.6 is permitted when necessary to correct false evidence or fraudulent conduct related to the proceeding. The duty to remedy the falsity overrides confidentiality.
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The lawyer must first attempt to dissuade the client or witness from offering false testimony. If unsuccessful, the lawyer should seek to withdraw. If withdrawal is denied and the perjury occurs, disclosure to the tribunal is required.
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