If a lawyer learns a former client gave perjured testimony in a civil case, must the lawyer act, and can the lawyer disclose it to the tribunal?

Plain-English summary

The Attorney Ethics Advisory Committee (a committee of the Arizona Supreme Court) re-issued a 2005 State Bar opinion addressing what a lawyer must do after learning that a client gave false testimony to a civil tribunal. A lawyer represented a client in an unemployment-compensation appeal, won benefits, and only afterward learned (from a third party, then confirmed by the client's own admission) that the client had committed perjury. The client then discharged the lawyer. The committee concluded that under the present Arizona Rules the balance has shifted away from preserving client confidences and toward the duty of candor: ER 3.3(c) requires remedial action even when the lawyer's knowledge of the falsity came through a confidential communication, and that duty survives the end of the representation.

The committee laid out five elements that trigger the ER 3.3(a)(3) duty: the lawyer must have actual knowledge of the false evidence; the evidence must have been offered to a "tribunal" (defined broadly under ER 1.0(m) to include an administrative agency acting in an adjudicative capacity, such as the unemployment appeal tribunal here); the evidence must be material; reasonable remedial measures must be available; and the duty lasts only until the proceeding concludes. On the facts, the lawyer's knowledge and the materiality of the testimony were not in dispute, and the appeal tribunal qualified as a tribunal.

The committee described remedial measures as a staged sequence, each step no broader than necessary to undo the effect of the tainted evidence. The lawyer should first confidentially remonstrate with the client and seek the client's cooperation in withdrawing the false evidence; failing that, move to withdraw the evidence without the client's consent (citing confidentiality, privilege, and, where applicable, the client's Fifth Amendment rights, rather than revealing the misconduct); and only as a last step, if nothing else will undo the effect, make an explicit disclosure of the client's misconduct to the tribunal. Because this lawyer had already been discharged, the committee noted the lawyer could no longer move to withdraw the evidence and suggested enlisting any successor counsel, or, if none, informing the tribunal by letter that specific evidence is unreliable. The committee emphasized that the duty terminates once the proceeding has concluded (the result upheld on appeal or the time for appeal expired), and that if the client was no longer receiving benefits and the case was closed, the lawyer's duty may already have lapsed.

In practice

The opinion holds that, under the Arizona rules as the committee read them, a civil litigator who acquires actual knowledge of a client's (or former client's) false material evidence must take remedial measures in steps, escalating to disclosure to the tribunal only if narrower measures cannot undo the effect of the false evidence. The opinion frames the duty under ER 3.3 as overriding ER 1.6 confidentiality and surviving discharge or withdrawal, but limited in time to the conclusion of the proceeding. It also notes the duty applies only on actual knowledge (not mere suspicion) and that disclosure should be no broader than necessary. Because Arizona rules and comments may have changed since issuance, verify the current ER 3.3 and ER 1.6 text before relying on the specific provisions discussed.

Common questions

Q: Does a lawyer have to do anything after learning a client lied under oath in a civil case?

A: Yes, if the lawyer has actual knowledge the evidence was false and material and the proceeding has not concluded. The opinion concluded ER 3.3(a)(3) requires "reasonable remedial measures, including if necessary, disclosure to the tribunal."

Q: Does the duty end when the client fires the lawyer?

A: No. The opinion concluded that under ER 3.3(c) the duty of candor survives the end of the attorney-client relationship and terminates only when the proceeding has concluded.

Q: Must the lawyer immediately tell the court the client committed perjury?

A: No. The opinion describes a staged approach: first remonstrate with the client, then move to withdraw the evidence without revealing misconduct, and disclose the client's misconduct to the tribunal only as a last step if nothing else will undo the effect of the false evidence.

Q: Does ER 3.3 apply to an administrative hearing, not just a court?

A: Yes. The opinion concluded that the broad ER 1.0(m) definition of "tribunal" covers an administrative agency acting in an adjudicative capacity, including the unemployment-compensation appeal tribunal in this case.

Background and rules framework

The opinion interprets Arizona ER 3.3 (candor toward the tribunal; Model Rule 3.3), ER 1.6 (confidentiality; Model Rule 1.6), ER 1.9(c) (duties to former clients, applying the same confidentiality obligations to former clients; Model Rule 1.9), and the ER 1.0 terminology definitions of "tribunal," "knowingly," and "fraud" (Model Rule 1.0). The committee contrasted the present rules with the former Arizona Code of Professional Responsibility, under which a lawyer generally could not reveal a client's perjury if doing so would breach a confidence, and explained that ER 3.3(c) now makes the integrity of the tribunal's decision-making process prevail over confidentiality in this situation.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / Arizona ER 3.3 (candor toward the tribunal; subsection (c) on duration)
• MR 1.6 / Arizona ER 1.6 (confidentiality of information)
• MR 1.9 / Arizona ER 1.9(c) (duties to former clients)
• MR 1.0 / Arizona ER 1.0(d), (f), (m) (definitions of fraud, knowingly, tribunal)

Statutes:

• A.R.S. section 23-671 (unemployment-compensation appeal tribunal process)

Cases:

• Nix v. Whiteside, 475 U.S. 157 (1986), client-perjury duties in the criminal context (distinguished)
• Casillas v. Arizona Dep't of Econ. Security, 739 P.2d 800 (Ariz. Ct. App. 1986), finality of DES decisions

Other opinions cited:

• ABA Formal Op. 98-412: withdrawing false evidence and reliance on privileges
• Arizona Ethics Ops. 93-10, 80-27, 2002-02: candor and client perjury
• Kansas Op. 98-01: remedial duty where a workers'-comp client's benefits remain modifiable

See also

• MT Ethics Op. 112314: Candor vs Confidentiality
• MT Ethics Op. 870326: Disclosing Client Perjury
• ABA Formal Op. 93-376: Client Lying in Discovery
• ABA Formal Op. 93-375: Bank Examination Disclosure

Source

• Landing page: https://www.azcourts.gov/cld/Attorney-Ethics-Advisory-Committee/Opinions-Issued-by-the-Committee
• Original PDF: https://www.azcourts.gov/Portals/0/26/AEA%20Committee/Issued%20Opinions/EO-20-0007%20Opinion.pdf

Original opinion text

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

SUPREME COURT OF ARIZONA
ATTORNEY ETHICS ADVISORY COMMITTEE
Ethics Opinion File No. EO-20-0007
The Attorney Ethics Advisory Committee was created in accordance with Rule 42.1.

This Opinion was originally issued by the State Bar of Arizona, Rules of Professional Conduct
Committee in 2005. The Arizona Attorney Ethics Advisory Committee (the “Committee”) has
updated the Opinion but its conclusions remain unchanged.

This opinion reviews the ethical dilemma posed when an attorney learns that, due to a former
client’s apparent perjury in a civil proceeding, the attorney has offered false material evidence to
a tribunal. The Committee concludes that the Arizona Rules of Professional Conduct, under the
facts of this case, provide that the attorney’s duty of candor to the tribunal overcomes the ethical
duty of preserving the former client’s confidences and that the attorney must take reasonable
remedial measures effective to undo the effect of the false evidence with respect to the affected
tribunal.

FACTS

   The inquiring Attorney, who was not identified in the original opinion due to State Bar of
   Arizona, Rules of Professional Conduct Committee confidentiality rules, represented
   Client in an unemployment compensation proceeding. Client’s employer had discharged
   Client, accusing Client of specified wrongdoing. Denying the allegations, Client sought
   unemployment benefits. An examiner denied Client any unemployment benefits on the
   basis of dishonesty and committing a criminal offense against the employer. Client has
   never been charged with any criminal offense arising from the employer’s allegations.
   Client retained Attorney to appeal the denial of the unemployment claim. Attorney and
   Client participated in an appeal before a Department of Economic Security single-member
   “appeal tribunal.” See generally A.R.S. § 23-671 (describing appeal process from
   examiner’s decision).

   The employer introduced certain evidence on appeal supporting its allegation of Client’s
   dishonesty. Attorney, through Client’s testimony, countered that evidence and offered
   additional evidence supporting Client’s case. The appeal tribunal ultimately ruled that the
   employer did not prove wrongdoing on Client’s part and awarded Client unemployment
   benefits. Subsequent to the hearing, a third party told Attorney that Client had not been
   truthful with Attorney or in testimony before the appeal tribunal. Attorney confronted
   Client about the alleged perjury, and Client admitted the perjury and other material facts to
   Attorney, establishing that false evidence had been presented to the tribunal. After Attorney
   privately remonstrated with Client about the need to correct the record, Client discharged
   Attorney. Attorney believes that although the employer has appealed the hearing officer’s
   decision, Client has found other employment and is no longer receiving unemployment
   compensation.



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QUESTION PRESENTED

    Must an attorney take reasonable remedial measures upon learning of a former client’s
    false testimony to an unemployment compensation hearing officer, and, if so, what
    measures must be taken? 1

RELEVANT ETHICAL RULES2

    ER 1.0            Terminology

    (d) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive
    or procedural law of the applicable jurisdiction and has a purpose to deceive.

    (f) “Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in
    question. A person’s knowledge may be inferred from circumstances.

    (m) “Tribunal” denotes a court, an arbitrator in an arbitration proceeding or a
    legislative body, administrative agency or other body acting in an adjudicative
    capacity. A legislative body, administrative agency or other body acts in an
    adjudicative capacity when a neutral official, after the presentation of evidence or
    legal argument by a party or parties, will render a legal judgment directly affecting
    a party’s interests in a particular matter.

    ER 1.6            Confidentiality of Information

    (a) A lawyer shall not reveal information relating to the representation of a client
    unless the client gives informed consent, the disclosure is impliedly authorized in
    order to carry out the representation or the disclosure is permitted or required by
    paragraphs (b), (c) or (d) or ER 3.3(a)(3).

    ER 1.9            Duties to Former Clients

    (c) A lawyer who has formerly represented a client in a matter shall not thereafter:

             (1) use information relating to the representation to the disadvantage of the
             former client except as these Rules would permit or require with respect to
             a client, or when the information has become generally known; or

             (2) reveal information relating to the representation except as these Rules
             would permit or require with respect to a client.

1
This opinion does not address a lawyer’s option to voluntarily reveal client confidences reasonably necessary to
prevent a client from committing certain crimes or frauds. See ER 1.6(d) (1) – (2).
2
All citations to the Ethical Rules and related Comments are to 17A Ariz. Rev. Stat. Ann., Rules of the Supreme
Court, Rule 42 (West 2004).

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     ER 3.3            Candor Toward the Tribunal

     (a) A lawyer shall not knowingly:

              (1) make a false statement of fact or law to a tribunal or fail to correct a false
              statement of material fact or law previously made to the tribunal by the
              lawyer; [or]

              (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s
              client or a witness called by the lawyer has offered material evidence and
              the lawyer comes to know of its falsity, the lawyer shall take reasonable
              remedial measures, including, if necessary, disclosure to the tribunal. A
              lawyer may refuse to offer evidence, other than the testimony of a defendant
              in a criminal matter, that the lawyer reasonably believes is false.

     (b) A lawyer who represents a client in an adjudicative proceeding and who knows
     that a person intends to engage, is engaging or has engaged in criminal or fraudulent
     conduct related to the proceeding shall take reasonable remedial measures,
     including, if necessary, disclosure to the tribunal.

     (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
     proceeding, and apply even if compliance requires disclosure of information
     otherwise protected by ER 1.6.

RELEVANT ARIZONA ETHICS OPINIONS

Opinions 2002-02, 2001-14, 93-10, 92-2, 91-02, 80-27.

                                               OPINION3

This opinion addresses the continuing quandary of an attorney’s ethical obligations upon learning
that a client has testified falsely before a civil tribunal. 4 Under the previously used Arizona Code
of Professional Responsibility, the ethical rules generally did not require or permit an attorney to
reveal confidential information learned from a client even in the face of knowledge that the client
committed perjury. See generally Ariz. Op. 80-27 (noting that under DR 7-102(B)(1) (as in effect

3
This opinion does not address whether an attorney has any legal duty to protect confidential client communications.
See A.R.S. § 12-2234 (establishing attorney-client privilege in civil proceedings); A.R.S. § 13-4062(2) (establishing
attorney-client privilege in criminal proceedings). Opinions on the law are beyond the Committee’s jurisdiction.
4
This opinion does not concern an attorney’s ethical duties upon learning of a client’s false testimony made during
the course of a criminal proceeding. Criminal proceedings present legal and constitutional issues not applicable in
civil matters. See generally Nix v. Whiteside, 475 U.S. 157 (1986); ER 3.3 cmt. [7] ((citing State v. Jefferson, 126
Ariz. 341 (1980), and Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978), and recognizing that some courts have held
that the duties imposed by ER 3.3 “is subordinate” to constitutional considerations present in criminal proceedings));
Geoffrey C. Hazard, Jr., et al., 2 The Law of Lawyering §§ 32.16 to 32.18 – (4th ed. Supp. 2015) (discussing client
perjury in context of criminal case representation); Ariz. Op. 2002-02, at 6-8 (same).

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on December 12, 1980), an attorney was not ethically required to reveal a client’s fraud on a
tribunal if to do so would violate the client’s confidential communication to the attorney as defined
by then-existing DR 4-101).

Under the present Arizona Rules of Professional Conduct, however, the balance has shifted away
from preserving client confidences and towards the attorney’s duty of candor to the tribunal. ER
3.3(c) explicitly requires the disclosure of a client’s false testimony notwithstanding that the
attorney “knows” of the false testimony via a client’s confidential communication. The Rules make
the policy determination that insuring the integrity of the decision-making process trumps, in some
instances, a lawyer’s traditional duty to protect a client’s confidences. Ariz. Op. 93-10, at 3-4
(recognizing that the “tension” between an attorney’s duty to a client and to the court has been
resolved in favor of the court in the context of a client giving false evidence); Geoffrey C. Hazard,
Jr., et al., 2 The Law of Lawyering § 32.11, at 32-25 (4th ed. Supp. 2015) [hereinafter, Hazard, The
Law of Lawyering].

       Ethical Duty Under ER 3.3

ER 3.3(a)(3) plainly requires an attorney to refrain from knowingly offering false evidence.
Further, when an attorney later learns that he or she has offered false material evidence to a
tribunal, including evidence offered directly by a client or former client,5 the attorney must take
“reasonable remedial measures, including if necessary, disclosure to the tribunal.” ER 3.3(a)(3);
see also Hazard, The Law of Lawyering, § 32.20, at 32-59 (discussing analogous section of the
Restatement (Third) of the Law Governing Lawyers (2000) which provides that duty of candor to
the tribunal survives termination of the attorney-client relationship). The duty to take remedial
measures lasts until “the conclusion of the proceeding.” ER 3.3 cmt. [13]. A proceeding is deemed
concluded when the result of the proceeding has been upheld on appeal or the time for the appeal
has otherwise expired. Id. In this case, then, the Committee must examine (1) whether Attorney
“knows” that false evidence was presented, (2) whether the purportedly false evidence was offered
to a “tribunal,” (3) whether the evidence was “material,” (4) what “reasonable remedial measures”
are necessary under the circumstances, and (5) the duration of Attorney’s obligation to take such
measures.6

                 1) Attorney’s Knowledge

Attorney here first received an indication of Client’s false testimony from a third party. Attorney
then privately confronted Client about the third party’s allegations, and Client admitted the perjury
in addition to other material facts. To Attorney, these admissions conclusively established the
falsity of Client’s prior testimony. Thus, here there is no dispute that Attorney now “knows” that
Attorney unwittingly offered Client’s false testimony. See ER 1.0(f) (stating that “actual
knowledge of the fact in question” satisfies ER’s knowledge requirement); Ariz. Op. 93-10, at 4
5
An attorney owes similar ethical duties of confidentiality to former clients as to existing clients. ER 1.9(c).
6
Because each of the five elements must be present to trigger the duty under ER 3.3(a)(3), each element is potentially
a “threshold” element, i.e., an element which if not present renders it unnecessary to determine the existence of the
remaining elements. Because the Committee seeks to provide guidance to members on all the elements, the Committee
chooses to discuss all of them notwithstanding that in this case Attorney’s duty may have lapsed due to the
“conclusion” of the proceedings.” See Parts 5a and 5b, infra.

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(stating that attorney’s “knowledge” of client’s false testimony is “ordinarily based on the client’s
own admissions to the attorney”). Cf. Hazard, The Law of Lawyering, § 32.21, at 32-60 to 32-61
(emphasizing that knowing of a client’s false testimony means more than a mere suggestion or
suspicion that the client has committed perjury).

           2) Definition of Tribunal

The duty found in ER 3.3 applies to all “tribunals,” not just courts of law. ER 1.0(m) defines
tribunal in broad terms. It includes any administrative agency acting in an adjudicative capacity
involving a neutral decision-maker who receives evidence and/or legal argument from opposing
parties and is then to render a legally binding judgment affecting the parties’ interests. The appeal
hearing process described earlier fits this definition of a “tribunal.” See A.R.S. § 23-671
(describing “appeal tribunal” process including requirements that tribunal be impartial, conduct a
fair hearing at which “all interested parties” have an opportunity to be present and heard, and to
render a decision); see also Hazard, The Law of Lawyering, § 32.03, at 32-9 (discussing intended
breadth of “tribunal”). Cf. Ill. Ethics Op. 99-04 (finding that a hearing before an Administrative
Law Judge of the Social Security Administration was a “tribunal” under Illinois version of ER
3.3).

           3) Material Evidence

It seems equally clear that the false testimony in this case was “material evidence.” Without
recounting so much of the facts that it would in all likelihood identify Attorney and Client, Client
made specific false denials under oath to directly refute the employer’s evidence. Attorney
unwittingly used this false testimony to discredit the employer’s proof of Client’s dishonest
behavior. Although the Committee cannot know with certainty that this evidence swayed the
appeal tribunal’s decision, it must have been considered “material” to it because the false evidence
went directly to points in dispute and was relevant to the proceedings and decision. See Ariz. Op.
93-10, at 4 (deeming client’s inconsistent and irreconcilable testimony in two separate proceedings
material evidence).

           4a) Reasonable Remedial Measures – Generally

Given Attorney’s actual knowledge of having unwittingly offered false material evidence resulting
from Client’s deception, Attorney now has an ethical duty under ER 3.3(a)(3) to take “reasonable
remedial measures.” The Committee stresses, however, that disclosures made pursuant to ER 3.3
should be narrowly tailored and no broader than necessary to undo the effect of the tainted
evidence. See ER 3.3 cmt. [10] (stating that purpose of reasonable remedial measures is to “undo
the effect of the false evidence”). Cf. ER 1.6(b).

Normally, the first remedial measure should be to confidentially approach and attempt to persuade
the client that the client should cooperate in seeking to withdraw the false evidence. Such private
remonstration should also include the advice that the attorney is ethically bound to take remedial
measures, including, if necessary, disclosure to the tribunal of the false evidence. If the client
agrees to seek withdrawal of the false evidence, the attorney should proceed accordingly by
moving to withdraw the tainted evidence from the record but without disclosing the fact of the

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client’s misconduct. 7 In most circumstances this should be a sufficient reasonable remedial
measure, if the timing of the withdrawal allows the tribunal to react to the change in evidence (e.g.,
the proceeding is still pending). If pressed for a reason why the evidence is being withdrawn, the
attorney should cite client confidentiality, attorney-client privilege, and, if appropriate, the client’s
Fifth Amendment right against self-incrimination. See ABA Formal Op. 98-412, at 2 & n.5
(recommending as one course of action the attorney’s withdrawal of the false evidence and reliance
on the cited privileges).

Even if the client does not agree to the withdrawal of the evidence, the next reasonable measure
generally would be for the attorney to move to withdraw the evidence from the tribunal’s
consideration without the client’s consent. If an attorney can refuse to offer evidence the attorney
reasonably believes to be false,8 see ER 3.3(a)(3), there seems to be no good reason why the
attorney could not move to withdraw evidence from a tribunal’s consideration that he or she knows
to be false. This measure, too, should be done without revealing any client misconduct. The
attorney should cite client confidentiality, attorney-client privilege, and the client’s Fifth
Amendment privilege, if appropriate, should the tribunal insist upon an explanation why the
attorney is seeking withdrawal of the evidence. Again, whether this might be a sufficient remedial
measure depends on whether the tribunal could effectively react if it grants the motion to withdraw
the evidence.9

In cases unlike this one, where the false evidence has not been offered, but the client so intends
and cannot be dissuaded from that course, another possible reasonable remedial measure might be
seeking to withdraw from the representation of the client. See generally ER 1.16(b) (listing
grounds for termination of the representation). Arguably, however, in some circumstances mere
withdrawal from the representation may be insufficient under the present version of the Rule. 10

When an attorney withdraws from the representation (or, as here, is discharged), the attorney may
reasonably conclude that the termination of the representation will not undo the effect of the tainted

7
The Committee envisions in most cases such a motion being made to the tribunal with notice to all appropriate
parties. This opinion does not condone inappropriate ex parte communications with a tribunal. See ER 3.5(b)
(prohibiting unauthorized ex parte communications).
8
This right to refuse to offer such evidence does not extend to the testimony of a criminal defendant. See ER 3.3(a)(3).
9
Whether the lawyer’s withdrawal of evidence without the client’s consent creates a conflict of interest under ER
1.7(a)(2) is something the lawyer placed in that situation must determine on a case by case basis. See ER 1.16(b)
(describing when an attorney may terminate a representation).
10
The Committee recognizes that an argument could be made that even if an attorney had forewarning of a client’s
intent to perpetrate a fraud on a tribunal, mere withdrawal may be insufficient. ER 3.3(b) requires an attorney to “take
reasonable remedial measures” when the attorney “knows that a person intends to engage” in “criminal or fraudulent
conduct related to the proceeding.” Under a prior version of the rule, a simple withdrawal would have been sufficient
because the rule only forbade an attorney from “assisting a criminal or fraudulent act by the client.” ER 3.3(a)(2)
(1998). Thus, mere withdrawal was sufficient under that Rule because the attorney was no longer “assisting” the client.
See ABA Formal Op. 98-412. Under present ER 3.3(b), however, an attorney is no longer simply required to “avoid
assisting” the client but appears to have an affirmative duty to warn the court of the impending fraud if mere
withdrawal would not deter the client. Because Attorney has already been discharged in this case, however, this
opinion need not address this issue.

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evidence and so further remedial measures might be necessary. In that circumstance, the attorney
should advise the client that retention of successor counsel would be in the client’s best interests
because the withdrawing (or discharged) attorney has a duty to take reasonable remedial measures
including possibly informing the tribunal of the false evidence.11

If neither withdrawal of the evidence nor termination of the representation would effectively
remediate the fraud, the attorney should consider disclosing the client’s misconduct to the tribunal.
This drastic step should be taken only after all other reasonable measures have first been tried and
failed or carefully considered and rejected. The Committee believes that in most instances an
attorney’s motion to withdraw evidence should be sufficient to remediate the fraud because such
a motion is reasonably calculated to sufficiently warn the tribunal of the situation concerning the
unreliability of the false evidence and “the tribunal [would] no longer be powerless to defend itself
against” it. Hazard, The Law of Lawyering, § 32.19, at 32-52. Disclosure of the client’s misconduct
(as opposed to putting the tribunal on notice that certain evidence should not be considered as part
of the record) would seem to be rarely, if at all, necessary to undo “the effect of the false evidence,”
the goal behind requiring remedial measures.

Thus, and unless the ethical obligation under ER 3.3 has run its time limit, an attorney is ethically
obligated to “make such disclosure to the tribunal as is reasonably necessary to remedy the
situation” even if to do so would otherwise contravene ER 1.6. ER 3.3 cmt. [10]. Further, the fact
that a client may ultimately face a prosecution for perjury is not a reason for an attorney to withhold
disclosure. See ER 3.3 cmt. [11]; see also Ariz. Op. 93-10, at 4 (stating that if a lawyer has
“knowledge” of a client’s perjury in a proceeding in which the lawyer represented the client, then
ER 3.3 requires disclosure to the tribunal if intermediate remedial measures prove ineffective).

              4b) Reasonable Remedial Measures In This Case

Assuming Attorney’s duty under ER 3.3 has not terminated because the proceedings have
concluded (see 5b infra), Attorney has some reasonable remedial measures still available. As noted
earlier, Attorney has already privately remonstrated Client. This effort was unsuccessful. Despite
Attorney’s appropriate efforts to convince Client to take proper remedial measures, Client rejected
that advice and discharged Attorney. The fact of that discharge limits the remaining available
remedial measures.

First, because Attorney is no longer counsel of record, Attorney cannot move the tribunal to
withdraw the tainted evidence from the proceedings even without Client’s consent. Second,
Attorney can no longer move to withdraw from the representation. Even if withdrawal of the
representation were possible in this case, however, it would not be a “reasonable remedial
measure” because Attorney’s withdrawal by itself would not cure the fraud by undoing the effect
of the tainted evidence.

11
In cases involving the termination of the representation and notwithstanding that an attorney may have concluded
that further reasonable remedial measures are necessary under ER 3.3(a)(3), the attorney nonetheless owes the former
client ethical duties under ER 1.9 and ER 4.3 (if no successor counsel is retained) to the extent those duties are not
superseded by ER 3.3(a)(3).

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In these circumstances, the Committee believes Attorney should consider as an option enlisting
the aid of Client’s present legal counsel, if any. See Restatement (Third) of the Law Governing
Lawyers § 120, cmt. h (2000) (“If a lawyer is discharged by a client or withdraws . . . the lawyer’s
obligations [of candor to the tribunal] under this Section are not thereby terminated. In such an
instance, a reasonable remedial measure may consist of disclosing the matter to successor
counsel.”). Although this would not relieve Attorney of Attorney’s own ethical obligations to the
tribunal under ER 3.3, the combined efforts of former and successor counsel in private
remonstrance with Client may persuade Client to consent to seek withdrawal of the false evidence.
In addition, because Attorney is no longer Client’s counsel of record, only successor counsel of
record, if any, can move to withdraw the tainted evidence without Client’s consent. Should this
step succeed either because the Client ultimately relents and allows any successor counsel to move
to withdraw the false evidence or because any successor counsel so moves even without Client’s
consent, Attorney would have taken a reasonable remedial measure sufficient to undo the effect of
the tainted evidence and, thus, satisfied Attorney’s personal obligations under ER 3.3(a)(3)
notwithstanding that Attorney did not personally inform the tribunal. 12

If there is no successor counsel of record, Attorney’s only apparent option is to inform the tribunal
by letter (with a copy to Client) that specific evidence is unreliable. 13 Again, such a step should
normally not include an express revelation of Client’s misconduct. The Committee is of the
opinion that in this case such a communication would be an effective remedial measure while not
disclosing more than what is necessary to undo the effect of the false evidence. 14

This case also presents the related question of the proper “tribunal” Attorney should notify. The
Committee believes that the proper entity is that entity which has jurisdiction of the proceeding at
the time the disclosure is made. Thus, Attorney must determine, by examining the appropriate
statutes, rules, and case law, whether the original examiner, hearing officer, or any subsequent
entity is the appropriate “tribunal” to which to make any disclosures.

     5a) Duration of Ethical Obligation – Generally

ER 3.3(c) makes clear that the ethical obligation to take reasonable remedial measures survives
the end of the attorney-client relationship. The ethical obligation terminates only when the tainted
proceedings have concluded. If the time for appeal or other review has not yet expired and there
has not yet been a final decision on the matter, then the ethical obligation to inform the tribunal

12
The facts of any given case may lead to the reasonable conclusion that not involving successor counsel and, instead,
informing the tribunal directly would be the remedial measure that undoes the effect of the tainted evidence while
doing the least harm to a former client. Thus, attorneys who have terminated, or been discharged from, a representation
should consider whether contacting any successor counsel or directly informing the relevant tribunal best fulfills the
ethical obligations under ER 3.3 while doing the least damage to the former client’s case.
13
Whether the tribunal chooses to inform the opposing counsel and party remains a decision for the tribunal and
subject to any legal and ethical requirements operating on the tribunal.
14
There is no talismanic language for the contents of such a letter. So long as the letter is reasonably calculated to put
the tribunal on notice that certain evidence is unreliable and that Attorney would not have offered the evidence if
Attorney had known of certain facts at the time Attorney introduced the evidence, the Committee believes that
Attorney’s ethical obligations are satisfied.

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exists. ER 3.3(c) & cmt. [13]. Otherwise, the duty to take remedial measures no longer exists
because the proceedings would be deemed to have concluded.

   5b) Duration of Ethical Obligation In This Case

In this particular instance, Attorney must learn whether the proceedings have reached their
“conclusion.” Whether proceedings have concluded is ultimately a legal question. Certainly, if the
original appeal of the tribunal decision to award compensation is still under active review, either
by the Unemployment Insurance Appeals Board or the judiciary, the proceeding is not concluded
and Attorney’s ethical obligation to take reasonable remedial measures continues.

If that decision is no longer under review, but Client is still receiving benefits which can be
modified at any time, then the proceeding may not be concluded, and Attorney’s ethical obligation
may continue. See Kan. Op. 98-01 (requiring a lawyer to take remedial measures where the lawyer
learned of a client’s false testimony made in a workmen’s compensation proceeding and the client
was still receiving benefits which could be modified at any time).

If however, as Attorney believes, Client is no longer receiving unemployment compensation and
the unemployment case is now closed, Attorney’s ethical duties have terminated regardless of
whether the proceeding could be re-opened at any future time or a new and separate proceeding
could be instituted against Client for the recovery of previously paid compensation. Otherwise,
there would never be a conclusion to these types of administrative proceedings, and the Committee
believes that such an open-ended ethical obligation would be inconsistent with the “practical time
limit” intended by ER 3.3(c). See ER 3.3 cmt. [13].

Accordingly, Attorney should ascertain the present procedural posture of Client’s award and then
consult applicable statutes, rules, and case law to determine if the proceeding is concluded. See
generally Casillas v. Arizona Dep’t of Econ. Security, 739 P.2d 800, 802 (Ariz. Ct. App. 1986)
(discussing the finality of DES decisions); Rogers v. Arizona Dep’t of Econ. Security, 644 P.2d
292, 293 (Ariz. Ct. App. 1982) (same).

CONCLUSION

Unless the proceedings are deemed concluded (e.g., an appeal ended or the time to take an appeal
has expired), an attorney in a civil proceeding must take reasonable remedial measures upon
learning that he or she has unwittingly offered false material evidence due to a client’s deception.
The duty to take such measures applies only when the attorney has actual knowledge of the false
evidence and the evidence is material. Reasonable remedial measures are to be taken in steps and
should be no broader than necessary to undo the effect of the tainted evidence. The first step should
normally be a private consultation with the client explaining the need to withdraw the tainted
evidence and advising that the attorney has a duty to take remedial steps even if the client refuses.

Failing that attempt at counseling, the attorney’s second step should be to seek withdrawal of the
evidence from the tribunal’s consideration without the client’s consent. The attorney can cite
ethical obligations as the reason for seeking withdrawal of the evidence, but should normally not
inform the tribunal of the client’s misconduct (e.g., that the client committed perjury), if such a

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withdrawal of the evidence would undo the effect of the false evidence. In that circumstance, an
attorney must also consider whether he or she has a conflict of interest with the client necessitating
an attempt to withdraw from the representation.

As a last step and only if no other steps would undo the effect of the false evidence, an attorney
must make an explicit disclosure of the client’s misconduct to the tribunal. In addition, if an
attorney has terminated, or been discharged from, a representation and the former client has
retained successor counsel, the former attorney should consider whether involving successor
counsel would be part of an appropriate remedial measure.

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