What must a Colorado lawyer do in a civil case after learning that the lawyer, the client, or a witness gave the court false evidence?

Plain-English summary

Opinion 123 (adopted June 18, 2011) addresses a civil lawyer's duties of candor under Colo. RPC 3.3, limited to civil matters because criminal cases raise distinct constitutional concerns. It focuses on three duties: not offering evidence the lawyer knows is false (Rule 3.3(a)(3)), taking reasonable remedial measures when false material evidence has been offered, and correcting the lawyer's own false statements of material fact or law (Rule 3.3(a)(1)). "Knows" means actual knowledge under Rule 1.0(f), and the opinion reads "false" as objective falsity, so a client's good-faith but mistaken belief does not relieve the lawyer who otherwise knows the evidence is false.

The remedial framework escalates. When a lawyer learns that material evidence already presented is false, the lawyer must first remonstrate confidentially with the client, advising that the lawyer may have to seek withdrawal and may have to disclose the falsity to the tribunal even over the client's objection, with potential perjury exposure. If remonstration fails, the lawyer must take further action: in most cases, withdrawing the false evidence with the tribunal's consent is an adequate measure, but where that will not undo the effect (for example, when the falsity surfaces on appeal) or the tribunal will not permit withdrawal, the lawyer must disclose to the tribunal what is reasonably necessary. The opinion concludes that withdrawal from the representation alone usually will not be an adequate remedial measure once false evidence has reached the tribunal. Before false evidence is given, by contrast, a lawyer who cannot dissuade a client or witness must not call the witness or elicit the false testimony, and may move to withdraw.

The opinion's most pointed conclusion concerns confidentiality. Rule 3.3's duty of disclosure is unqualified on its face and does not exempt information protected by the attorney-client privilege; because Rule 1.6 confidentiality (which is broader than the privilege) is expressly overridden by Rule 3.3(c), the Committee concludes that when remedial measures require it, a lawyer must disclose to the tribunal even privileged information, and even without client consent. It grounds this in People v. Casey and out-of-state authority (Mack, ABA Formal Op. 98-412), while stressing two limits: disclosure must be only what is reasonably necessary to apprise the tribunal, and the lawyer has a continuing duty to object to the evidentiary use of privileged information, leaving the tribunal to decide admissibility. Four illustrations (a forged deed, a financial affidavit in a dissolution, anticipated false testimony, and false testimony already given) apply the framework, several keyed to materiality and the Rule 1.7 conflicts that arise when the lawyer must act against the client's wishes.

In practice

Under the rules as they stood at the time of the opinion, a Colorado civil lawyer who comes to know that material evidence is false faces a mandatory, escalating remedial duty under Rule 3.3: remonstrate confidentially with the client, then, if that fails, withdraw the evidence with the tribunal's consent, withdraw from the representation, or disclose to the tribunal as reasonably necessary. The opinion holds that this duty continues to the conclusion of the proceeding and overrides Rule 1.6 confidentiality, including, in limited circumstances, privileged information, with disclosure kept to the minimum necessary. It treats withdrawal from the representation alone as usually insufficient once false evidence has been presented, and it flags the Rule 1.7 conflict that arises when the lawyer must disclose over the client's objection. Because Colo. RPC 3.3 has remained materially stable, the framework continues to track the current rule, but a lawyer should verify the rule text and any later authority before relying on specifics.

Common questions

Q: My client just admitted he testified falsely at a civil hearing. What do I do first?

A: Remonstrate with the client confidentially. The opinion makes confidential remonstration the first required step, attempting to persuade the client to correct the false evidence and advising that the lawyer may have to disclose it to the tribunal even without consent.

Q: Is withdrawing from the case enough to fix presented false evidence?

A: Usually not. The opinion concludes that once false material evidence has been presented to the tribunal, withdrawal from the representation alone ordinarily will not undo its effect, so the lawyer must withdraw the evidence with the tribunal's consent or disclose to the tribunal as reasonably necessary.

Q: Does the duty of candor override attorney-client confidentiality?

A: Yes, and in limited cases even the privilege. The opinion concludes Rule 3.3's disclosure duty is unqualified, that Rule 3.3(c) overrides Rule 1.6, and that when remedial measures require it a lawyer must disclose to the tribunal even privileged information, without client consent, limited to what is reasonably necessary.

Q: What if I only suspect the evidence is false but do not know?

A: Then remedial measures are not required. The opinion explains that "knows" means actual knowledge under Rule 1.0(f); if the lawyer only reasonably believes (but does not know) evidence is false, Rule 3.3(a)(3) permits, but does not require, the lawyer to refuse to offer it.

Q: How is "material" judged?

A: By potential to influence, not outcome. The opinion follows In re Fisher: materiality "is not directed by the outcome of a particular matter, but rather whether there is potential that the information could influence a determination," illustrated by its dissolution example where a $5,000 discrepancy is material in a $20,000 estate but not a $5 million one.

Background and rules framework

The opinion interprets Colo. RPC 3.3 (candor toward the tribunal), including paragraphs (a)(1), (a)(3), (c), and the definition of "tribunal" in Rule 1.0(m), against the confidentiality duty of Rule 1.6(a) and its Comment [3], the knowledge definition in Rule 1.0(f), the no-assistance-to-fraud rule 1.2(d), and the conflict (Rule 1.7) and withdrawal (Rule 1.16) rules that govern when a lawyer must act against a client's wishes. It relies on Colorado authority (In re Fisher, People v. Casey), the Restatement (Third) of the Law Governing Lawyers, and out-of-state and ABA materials on candor and privilege.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 3.3 / Model Rule 3.3 (candor to the tribunal; remedial measures; Comments [6], [10], [13])
• Colo. RPC 1.6(a) / Model Rule 1.6 (confidentiality; Comment [3])
• Colo. RPC 1.0(f) and 1.0(m) / Model Rule 1.0 (definitions of "knows" and "tribunal")
• Colo. RPC 1.2(d), 1.7(a), 1.16(a)(1) / Model Rules 1.2, 1.7, 1.16 (no assisting fraud; conflicts; withdrawal)

Statutes:

• C.R.S. § 13-90-107(1)(b) (attorney-client privilege); C.R.S. § 18-8-502 (perjury)

Cases:

• In re Fisher, 202 P.3d 1186 (Colo. 2009), materiality under Rule 3.3(a)(1)
• People v. Casey, 948 P.2d 1014 (Colo. 1997), candor overrides confidentiality
• In re Mack, 519 N.W.2d 900 (Minn. 1994); Purcell v. District Attorney, 676 N.E.2d 436 (Mass. 1997)

Other opinions cited:

• ABA Formal Op. 98-412 (1998): a lawyer must correct his or her own false representations to the tribunal
• N.Y. State Bar Op. 837 (2010); State Bar of Ariz. Ethics Op. 05-05 (2005)

See also

• ABA Formal Op. 93-376: Client Lies in Discovery
• ABA Formal Op. 508: Ethics of Witness Preparation
• ABA Formal Op. 06-439: Truthfulness in Negotiation and Mediation

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_123_2011.pdf