What must a lawyer do if a client plans to lie or give false evidence in a court proceeding, and can the lawyer tell the court?

Plain-English summary

The opinion addresses a criminal defense scenario: a client tells his lawyer before a bail hearing that he intends to use a false identity and lie about his prior record. The opinion frames the lawyer's duties under ARPC 3.3 as two-fold, one prophylactic and one remedial. Prophylactically, ARPC 3.3(a)(3) requires the lawyer to refuse to offer evidence, including the client's testimony, that the lawyer knows to be false, regardless of the client's wishes, and ARPC 1.2(d) bars the lawyer from assisting conduct the lawyer knows is criminal or fraudulent. The lawyer must try to persuade the client not to offer false testimony and explain the consequences, including that the lawyer may have to inform the court.

If the client nonetheless testifies falsely, the opinion holds the lawyer has a remedial duty to take reasonable, timely steps to correct the misstatement. The opinion follows the ARPC 3.3 commentary's sequence: remonstrate with the client confidentially, seek the client's cooperation in withdrawing or correcting the false statement, and, failing that, either withdraw (if that would undo the effect, such as a "noisy withdrawal" disaffirming work product) or make disclosure to the tribunal as reasonably necessary. The opinion stresses that ARPC 3.3(c) makes the candor duties apply "even if compliance requires disclosure of information otherwise protected by Rule 1.6."

The opinion also withdraws Ethics Opinion 83-3, explaining that it was decided under the Disciplinary Rules of the former Code of Professional Responsibility, which Alaska rescinded in 1993, and that the duty under Rule 3.3 is limited to situations where the lawyer is actually participating in a proceeding rather than merely observing it.

In practice

Under this opinion, a lawyer who is participating in an adjudicative proceeding and knows a client intends to offer false testimony may not present that testimony and must first attempt to dissuade the client. If false testimony is given, the opinion describes an escalating sequence of remedial measures, beginning with confidential remonstration and cooperation in correction, and ending, only if necessary, with disclosure to the tribunal. The opinion frames the appropriate remedial measure as depending on the factual context.

Common questions

Q: Can a criminal defense lawyer let a client testify under a false identity?

A: No. The opinion holds that ARPC 3.3(a)(3) requires the lawyer to refuse to offer evidence, including the client's testimony, that the lawyer knows to be false, and ARPC 1.2(d) bars assisting conduct the lawyer knows is criminal or fraudulent.

Q: What does the lawyer have to do before the client testifies?

A: The opinion holds the lawyer must try to persuade the client not to offer false testimony and explain the consequences, including that the lawyer cannot offer the false evidence and may be required to inform the court if the client proceeds.

Q: If the client lies on the stand, can the lawyer tell the court, despite confidentiality?

A: If remonstration and withdrawal cannot undo the effect, the opinion holds the lawyer may be required to disclose to the tribunal as reasonably necessary, because ARPC 3.3(c) makes the candor duties apply even when compliance requires disclosing information otherwise protected by ARPC 1.6.

Background and rules framework

The opinion interprets the Alaska Rules of Professional Conduct, principally ARPC 3.3 (candor toward the tribunal), together with ARPC 1.6 (confidentiality) and ARPC 1.2(d) (a lawyer may not assist criminal or fraudulent conduct). ARPC 3.3(a) prohibits knowingly making false statements to the tribunal, failing to disclose controlling adverse authority, or offering evidence the lawyer knows is false; ARPC 3.3(b) requires reasonable remedial measures when someone engages in criminal or fraudulent conduct related to the proceeding; and ARPC 3.3(c) provides that these duties apply even when they require disclosing information protected by ARPC 1.6. The opinion relies on the rule's commentary and on ABA Formal Op. 92-366 in describing the "noisy withdrawal" option.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / ARPC 3.3 (candor toward the tribunal; remedial measures)
• Model Rule 1.6 / ARPC 1.6 (confidentiality of client information)
• Model Rule 1.2(d) / ARPC 1.2(d) (no assistance of criminal or fraudulent conduct)

Cases:

• In re K.A.H., 967 P.2d 91 (Alaska 1998), rescission of the Code of Professional Responsibility

Other opinions cited:

• ABA Formal Op. 92-366 (1992): withdrawal and disaffirmance of tainted work product
• Alaska Ethics Op. 83-3: withdrawn by this opinion

See also

• AL Ethics Op. 2009-01: Client Perjury and Candor
• ABA Formal Op. 93-376: Client Lying in Discovery
• ABA Formal Op. 98-412: Client Violating a Court Order

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/2022-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ETHICS OPINION 2022-2
The Scope of a Lawyer’s Duties When a Client Provides
False Statements or Evidence to the Court
ISSUE:
If a lawyer is aware a client may make false statements in an
adjudicative proceeding, what are the lawyer’s ethical duties?
CONCLUSION:
If the lawyer is participating in that adjudicative
proceeding, then the lawyer is obliged to seek to persuade the client not to
make false statements during the proceeding. A lawyer must also refuse to
offer false evidence in the proceeding. If the client nevertheless makes false
statements in a proceeding, the lawyer must take reasonable and timely
remedial measures to correct the misstatement, which can include disclosing
the misstatement to the court.
FACTS:
Defendant D asks Attorney A to represent him in a bail
hearing. During the course of the initial client interview, D reports that he
routinely uses false identities in order to avoid consequences for his conduct
and that he plans to make false statements at the upcoming bail hearing with
respect to his true identity and his prior criminal record. Attorney A tells D
that she cannot represent D if he intends to make false statements at the bail
hearing. See ARPC 3.3. D decides to proceed with retaining Attorney A. As
the bail hearing approaches, however, D gets nervous and alerts Attorney A
that, despite Attorney A’s earlier admonition, D plans to use a false identity
when asked to identify himself or otherwise lie about certain prior offenses in
an effort to avoid a bad outcome at the bail hearing. What are Attorney A’s
ethical duties in this situation? If, despite Attorney A’s efforts, D makes false
statements during the proceeding, under what circumstances may Attorney A
inform the court of D’s false statements?
RULES:

ARPC 3.3, 1.6, 1.2(d).

ANALYSIS: ARPC 3.3(a) seeks to ensure candor toward the tribunal by
prohibiting a lawyer from knowingly (1) making a false statement of fact or law
to the tribunal (or failing to correct false statements of material fact previously
made to the tribunal by the lawyer); (2) failing to disclose to the tribunal legal
authority in the controlling jurisdiction known to the lawyer to be directly
adverse to the client’s position (and not disclosed by opposing counsel); or (3)
offering evidence that the lawyer knows is false. ARPC 3.3(b) goes beyond the
lawyer’s own conduct and imposes obligations where the lawyer represents a
client in an adjudicative proceeding and knows that someone—including, but
not limited to, the client—intends to engage, is engaging, or has engaged in
some criminal or fraudulent conduct related to the proceeding. In that
circumstance, the lawyer must take reasonable and timely remedial measures,
1

which may include disclosure to the tribunal.1 ARPC 3.3(c) is clear that the
lawyer’s duties of candor “apply even if compliance requires disclosure of
information otherwise protected by Rule 1.6.”
Under the scenario described above, ARPC 3.3 imposes two duties on Attorney
A: one prophylactic (refusing to offer false evidence in the first place) and one
remedial (remedying prior false testimony). Attorney A’s duties are fairly
straightforward.
1. The Duty to Refuse to Offer False Evidence
ARPC 3.3(a)(3) “requires that the lawyer refuse to offer evidence that the lawyer
knows to be false, regardless of the client’s wishes.”2 Therefore, Attorney A
could not offer evidence, including D’s testimony at the bail hearing, that
Attorney A knows to be false (e.g., a false identity or other misstatements about
D’s prior criminal record). Further, under ARPC 1.2(d), the lawyer may not
assist a client to engage in conduct that the lawyer knows is criminal or
fraudulent, such as making false statements in an adjudicative proceeding.
Attorney A has an ethical duty to try to persuade D in advance of the bail
hearing that D should not offer false testimony. Attorney A should discuss the
legal consequences of any such proposed course of conduct.3 For example,
Attorney A may point out the legal consequences to D if and when the
misstatement is uncovered, including its impact on future credibility
determinations in the case. Attorney A should also explain to D that Attorney
A cannot offer the false evidence to the court and that, if D nevertheless offers
such false testimony, Attorney A may be required to inform the court about the
misstatement.
2. The Duty to Remedy Prior False Testimony
If D proceeds to offer false testimony during the bail hearing, Attorney A would
have a duty to take reasonable, timely steps to correct D’s misstatements. The
appropriate remedial measures will depend on the factual context. The
1 The lawyer has additional responsibilities in an ex parte proceeding, but those

are not relevant here. See ARPC 3.3(d).
2 APRC 3.3, Comment.
3 See also ARPC 3.3, Comment (“If the lawyer knows that the client intends to

testify falsely or wants the lawyer to introduce false evidence, the lawyer should
seek to persuade the client that the evidence should not be offered. If the
persuasion is ineffective and the lawyer continues to represent the client, the
lawyer must refuse to offer the false evidence.”).
2

Commentary to ARPC 3.3 recommends that Attorney A “remonstrate the client
confidentially, advise the client of the lawyer’s duty of candor to the tribunal
and seek the client’s cooperation with respect to the withdrawal or correction of
the false statements or evidence.” This approach seeks to minimize the
damage to D’s legal rights, since D would have an opportunity to salvage some
credibility by owning up to the earlier misstatement. If D is unwilling to make
the necessary withdrawal or correction of the false statement, then Attorney A
must either withdraw from the representation (if permitted, and if such
withdrawal could somehow undo the effect of the false statement) or make an
appropriate disclosure to the tribunal as is reasonably necessary to remedy the
misstatement.4 An example of a withdrawal that may undo the effect of a false
statement could be a so-called “noisy withdrawal” in which Attorney A
disaffirms work product that the lawyer prepared on the basis of D’s
misstatement.5 Even though this may have the collateral effect of disclosing
inferentially client confidences obtained during the representation, it may be
necessary in order to effectuate the lawyer’s withdrawal from representation of
the client. If the attorney’s withdrawal will not undo the effect of the false
statement, the Rules of Professional Conduct expressly recognize that Attorney
A may be required to disclose the client’s confidences or secrets in order to
comply with the attorney’s ethical obligations under ARPC 3.3: “A lawyer shall
not reveal a client’s confidence or secret unless the client gives informed
consent, except for . . . disclosures permitted by . . . Rule 3.3.”6
Ethics Opinion 83-3 is withdrawn. That opinion from nearly forty years
ago dealt with an attorney’s ethical duties under the Disciplinary Rules. The
Code of Professional Responsibility—including the Disciplinary Rules—was
rescinded in 1993 and replaced by the Alaska Rules of Professional Conduct.7

4 See id.

When withdrawal from the representation will not undo the effect of the
false statement, disclosure to the tribunal is required. A lawyer may conclude
that compliance with ARPC 3.3’s disclosure duty “results in such an extreme
deterioration of the client-lawyer relationship that the lawyer can no longer
competently represent the client.” Id.
See ABA Formal Op. 92-366 (Aug. 8, 1992); see also ARPC 1.6, Comment
(noting that ARPC 1.6 allows the attorney to give notice of the fact of withdrawal,
“and the attorney may also withdraw or disaffirm any opinion, document,
affirmation, or the like”). Any request for withdrawal that is premised on the
client’s misconduct may only reveal confidences and secrets to the extent
reasonably necessary to comply with ARPC 3.3.
5

6 ARPC 1.6(a).
7 See In re K.A.H., 967 P.2d 91, 93 (Alaska 1998).

3

Given that the underlying rule was rescinded, Ethics Opinion 83-3 is
accordingly no longer valid.8
Approved by the Alaska Bar Association Ethics Committee on October 6, 2022.
Adopted by the Board of Governors on October 28, 2022.

G:\Ds\COMMITTEES\ETHICS\ADOPTED AKBAR ETHICS OPINS, INDEXES\2022-2.docx

8 The now-withdrawn opinion addressed a very uncommon scenario in which a

prospective client told a lawyer about plans to engage in perjury, chose not to
hire the lawyer, but then the lawyer coincidentally observed (but did not
participate in) the very hearing at which the prospective client committed
perjury. Because a lawyer’s duty under Rule 3.3 is limited to instances where
the lawyer is actually participating in a proceeding, rather than acting as an
observer, no duty to disclose attaches in this unusual circumstance. The
Committee expects that the above opinion will be more helpful to practitioners
who wish to understand their ethical obligations when faced with a client (or
prospective client) who is considering whether to offer false testimony or
evidence.
4