What must an Illinois lawyer do after learning a client submitted false material evidence in an administrative hearing?

Plain-English summary

A lawyer represents an applicant contesting the denial of supplemental security income (SSI) benefits before a Social Security Administration (SSA) administrative law judge. The initial SSI application, a sworn affidavit the client filed before retaining the lawyer, purports to list all the client's financial resources. During the representation the lawyer discovers the client failed to disclose significant assets, resources, and income, which is part of the record the ALJ will rely on. The lawyer asks whether the SSA hearing is a "tribunal," what the lawyer's disclosure obligations are, and whether the lawyer may satisfy them by advising the client and then withdrawing without disclosure.

The opinion first holds the SSA hearing is a "tribunal" under Rule 1.0(m): the SSA is an administrative agency, and the proceeding is adjudicative because evidence is presented, arguments made, and a neutral official determines a party's rights. So Rule 3.3 (candor toward the tribunal) applies. The opinion assumes the client's nondisclosure was intentional and that the false information is material.

On obligations, the opinion holds Rule 3.3(a)(3) bars knowingly offering false evidence and requires reasonable remedial measures, including disclosure if necessary, even for evidence the client placed before the tribunal before the lawyer's involvement, and Rule 3.3(c) says these duties continue to the end of the proceeding and override Rule 1.6 confidentiality. The remedial sequence (Comments 10-11) is progressive: the lawyer must first remonstrate with the client, explain the lawyer's duties, and try to get the false evidence corrected or withdrawn. If the client refuses, the lawyer should explore measures short of outright disclosure (citing ABA Formal Op. 93-376 and the Rantis Review Board decision), because disclosure is not required in every case if the effect of the false evidence can be undone another way. But if the client will not correct it and the lawyer's own efforts fail, the lawyer must disclose to the tribunal as reasonably necessary, tailoring the disclosure to the minimum needed. The opinion ties this to Rule 1.2(d) (no assisting client fraud) and Rule 4.1 (truthfulness to others), noting Rule 3.3's tribunal duty is higher than Rule 4.1's.

On withdrawal, the opinion holds that mere withdrawal without disclosure is improper, because withdrawing does not undo false evidence already before the tribunal (citing Restatement § 120 cmt. h and the "noisy withdrawal" discussion in ABA Formal Ops. 92-366 and 93-376). It concludes that on these facts the lawyer must remonstrate with the client, seek to withdraw if the client refuses to correct the application, and, because withdrawal alone will not keep the ALJ from considering the false evidence, take steps to correct its effect, disclosing to the tribunal as a last resort if nothing else will.

In practice

The opinion holds that an SSA benefits hearing is a tribunal under Rule 1.0(m), so Rule 3.3 governs. It holds that on learning a client submitted false material evidence the lawyer must remonstrate with the client and seek correction or withdrawal of the evidence, may pursue remedial measures short of disclosure where they can undo the effect, but must disclose to the tribunal (over Rule 1.6 confidentiality, and tailored to the minimum necessary) where the effect cannot otherwise be undone. It holds that withdrawing from the representation without disclosure is generally improper because it does not cure evidence already before the tribunal, and ties the duty to Rule 1.2(d) and Rule 4.1.

Common questions

Q: Is a Social Security benefits hearing a "tribunal"?

A: Yes. The opinion holds the SSA hearing is a tribunal under Rule 1.0(m) because it is an adjudicative proceeding where a neutral official decides a party's rights after evidence and argument.

Q: What is the first step when a lawyer learns of a client's false evidence?

A: Remonstrate with the client. The opinion holds the lawyer must explain the lawyer's ethical duties (including possible disclosure) and try to get the client to correct or withdraw the false evidence.

Q: Must the lawyer always disclose the false evidence to the tribunal?

A: Not always. The opinion holds disclosure is required only when the effect of the false evidence cannot be undone through other reasonable remedial measures; otherwise lesser measures may suffice.

Q: Can the lawyer just quietly withdraw instead of disclosing?

A: Generally no. The opinion holds withdrawal alone is insufficient because it does not undo false evidence already before the tribunal; the lawyer must take steps to correct the effect, disclosing as a last resort.

Background and rules framework

The opinion interprets Illinois Rule 3.3 (candor toward the tribunal; Model Rule 3.3), especially Rule 3.3(a)(3) on remedial measures for false evidence and Rule 3.3(c) on the continuing duty overriding confidentiality, with the Rule 1.0(m) definition of "tribunal." It reads these alongside Rule 1.2(d) (no assisting fraud), Rule 4.1 (truthfulness to others), Rule 1.6 (confidentiality), and Rule 1.16 (withdrawal), and applies the remedial-measures framework of the rule's comments, the Restatement, and ABA opinions.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 3.3 (candor toward the tribunal) / MR 3.3
• Illinois RPC 1.2(d) (no assisting client fraud) / MR 1.2
• Illinois RPC 4.1 (truthfulness to others) / MR 4.1
• Illinois RPC 1.6 (confidentiality) / MR 1.6
• Illinois RPC 1.16 (withdrawal) / MR 1.16
• Illinois RPC 1.0(m) (definition of "tribunal") / MR 1.0

Cases:

• In re Winthrop, 219 Ill. 2d 526, 848 N.E.2d 961 (2006), duty to correctly inform the court
• In re Rantis, 09-CH-65 (ARDC Review Board 2011), disclosure required only when the effect cannot otherwise be undone

Other authorities:

• Restatement (Third) of the Law Governing Lawyers § 120 cmt. h (2000)

Other opinions cited:

• ABA Formal Ops. 92-366 (1992), 93-376 (1993), 98-412 (1998)
• New York State Bar Ass'n Op. 837 (2010)
• ISBA Opinion 95-14

See also

• ISBA Ethics Op. 12-07: Disclosing Adverse Legal Authority, Not Adverse Facts
• NYC Bar Ethics Op. 2013-2: Remedying False Evidence After a Proceeding
• NY State Bar Op. 837: Confronting False Evidence and False Testimony

Source

• Landing page: https://www.isba.org/ethics/opinions/1305