Bar Counsel Notes: Court/Candor Toward Tribunal


Attorney's client testified in court that her Facebook account was hacked and that she did not make the post showing her smoking cannabis. The attorney was surprised by this new unexpected testimony, and is not certain she actually believes the client's testimony. Client is adamant that her testimony was truthful. Based upon her suspicion, does the attorney have an obligation of disclosure to the court under MRPC 3.3?


No - Rule 3.3(a)(3) [Candor Toward the Tribunal] requires that the attorney not "knowingly" present false testimony or evidence of any witness, including a client. Comments [5], [6], and [8] discuss the need for there to be "actual knowledge" by the attorney of such falsity. Under these facts with only her suspicion of falsity, the attorney has no obligation under 3.3 to controvert her client. See also Professional Ethics Commission Advisory Opinion #100 (Threatening Grievance Action to Influence Malpractice Settlement Negotiations) (10/4/89) (The attorney's "knowledge" of an offense for purposes of (former) M. Bar R. 3.2(e)(1) (duty to report attorney misconduct) should be based upon a substantial degree of certainty, not on rumor or suspicion).

*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.