Bar Counsel Notes: Candor Toward a Tribunal

Attorney represented client at a hearing before an Administrative Law Judge. During client's testimony, the judge indicated concern about client's ability to drive and otherwise take care of herself, and then specifically asked client if she had driven up to the hearing that day. Client replied "No, my sister drove me up." The hearing concluded with no findings or order being issued from the bench. After the hearing, Attorney and client walked out to the parking lot and client proceeded to get into a car to leave by herself. Attorney questioned client about what she was doing. Client responded, "I did actually drive myself here today but didn't want to admit that to the judge due to my suspended license." Does Attorney have an obligation to notify the tribunal of client's false testimony?

Yes, Attorney is now aware that client has misled the tribunal. Assuming that her comments constituted "material evidence," under M. R. Prof. Conduct 3.3 (a)(3),(b),(c) (Candor to the Tribunal), Attorney should now call upon client for her cooperation in the Attorney's immediate disclosure to the court to correct client's earlier false testimony. Attorney must also explain to client even if she directs Attorney not to so disclose, that Attorney is still required to do so as an officer of the court. Attorney should reiterate that such disclosure must occur even if she does not otherwise agree. See Comments 10 and 11 to M. R. Prof. Conduct 3.3. Attorney may wish to provide client with a copy of the Rule as part of a letter memorializing the conversation concerning Attorney's ethical obligations with this serious event. Under Rule 3.3(c), Attorney's disclosure to the court is required even when Attorney received the corrective information in a form normally protected under M. R. Prof. Conduct 1.6 (Confidentiality of Information). See also Reporter's Notes to M. R. Prof. Conduct 3.3.

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.