If a civil litigator learns that the client lied in interrogatories or a deposition and produced a forged document, what must the lawyer do, and can the lawyer be forced to tell the court?

Plain-English summary

The committee addressed a civil litigator told by her client, after the fact, that he had lied in answering interrogatories and deposition questions and had supplied a falsified document in response to a request for production. On the facts, the lawyer represented an insurance agent sued over a coverage claim; the agent testified at deposition that he never received the insured's timely proof of loss and produced a mail log to confirm it, then later admitted he had actually received the notice on time, shredded it, and altered the mail log to conceal receipt.

Building on Formal Opinion 87-353 (client perjury), the committee held that "the duty of confidentiality mandated by Rule 1.6 is explicitly superseded by the duty of disclosure in Rule 3.3." It explained that the Rule 3.3(a)(2) phrase "assisting a criminal or fraudulent act by the client" is "not limited to the criminal law concepts of aiding and abetting or subornation," but is a prophylactic measure to keep client fraud from contaminating the judicial process. Under Rule 3.3(b), the lawyer's remedial duties continue to the conclusion of the proceeding and apply even when compliance requires revealing information otherwise protected by Rule 1.6.

The committee held the lawyer "must first attempt to persuade the client to rectify the situation," and if that proves impossible, "must herself take whatever steps are necessary to ensure that a fraud is not perpetrated on the tribunal." It described a graduated set of remedial measures depending on the circumstances: in some cases withdrawing from the representation; in others disaffirming the tainted work product; in others disclosure to opposing counsel; and "finally, if all else fails, direct disclosure to the court may prove to be the only effective remedial measure." The opinion treats disclosure to the tribunal as the last resort, not the first response.

Currency note

This opinion was issued in 1993, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which substantially rewrote Rule 3.3 (including its current "reasonable remedial measures" and disclosure provisions). Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does confidentiality let a lawyer stay silent when the client lied in discovery?

A: No. The opinion concluded that the Rule 3.3 duty of candor toward the tribunal supersedes Rule 1.6 confidentiality, so the lawyer must take steps to rectify the fraud even if that ultimately requires disclosure.

Q: What is the lawyer's first step on learning of the client's discovery fraud?

A: The committee held the lawyer must first try to persuade the client to rectify the falsehood; only if the client refuses does the lawyer take further remedial measures.

Q: Does the lawyer have to go straight to the judge?

A: No. The opinion described a graduated ladder of remedial measures, withdrawal, disaffirming work product, disclosure to opposing counsel, with direct disclosure to the court as the last resort if nothing else cures the fraud.

Q: Did it matter that the lies happened in pretrial discovery rather than at trial?

A: No. The committee applied the candor obligation to the pretrial discovery setting, extending the perjury analysis of Formal Opinion 87-353 to fraud encountered in pretrial proceedings.

Background and rules framework

The opinion interpreted Rule 3.3 (candor toward the tribunal), reading subsections (a)(2), (a)(4), and (b) to require remedial action, continuing to the conclusion of the proceeding, even at the expense of confidentiality. It read Rule 1.6 (confidentiality) as qualified by Rule 3.3 in this setting, and drew on Rule 1.2 (scope of representation) and Rule 1.16 (withdrawal) for the available remedial steps. Because the ABA interprets the Model Rules directly, there is no state-rule analogue.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal; subsections (a)(2), (a)(4), (b))
• MR 1.6 (confidentiality of information)
• MR 1.2 (scope of representation)
• MR 1.16 (declining or terminating representation; withdrawal)

Other opinions cited:

• ABA Formal Op. 87-353 (1987): a lawyer who knows the client committed perjury must disclose it to the tribunal if the client will not rectify it

See also

• ABA Formal Op. 98-412: Disclosure when a client violates a court order
• ABA Formal Op. 93-375: Disclosure adverse to a client in a bank examination
• RI EAP Op. 2005-05: Lawyer Cannot Disclose a Client's Undisclosed Imprisonment Without Consent, but Cannot Further the Ongoing Fraud on the Insurer

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: 93-376.pdf