If a lawyer believes a client may have given false deposition testimony, must the lawyer correct it or tell the tribunal, and does being fired end that duty?

Plain-English summary

A lawyer was discharged by the clients, a financial institution and its CEO, the day after the CEO's deposition (adjourned and not completed). The lawyer believed two of the CEO's statements could "possibly be considered perjured testimony" and had "more than a mere suspicion" that they were false, but was not certain. The lawyer asked whether there was a duty to correct the former client's deposition or to advise the tribunal of the client's tactics.

The Committee concluded that if a client has given false testimony, the duty is clear: under MRPC 3.3(a)(4) the lawyer must take reasonable remedial measures to correct it or rectify the consequences of the client's act, and under MRPC 3.3(b) those duties continue to the conclusion of the proceeding and apply even if compliance requires disclosing information otherwise protected by Rule 1.6, so discharge or withdrawal does not end the duty. But it concluded the trigger is knowledge: MRPC 3.3 speaks of testimony the lawyer "knows to be false," and "more than a mere suspicion" is not enough, so on these facts there was no duty to correct or rectify.

The Committee concluded the lawyer had no obligation to investigate further to determine whether the deposition was perjured. It read MRPC 1.6(c)(3) (permitting disclosure of confidences and secrets to rectify the consequences of a client's illegal or fraudulent act in which the lawyer's services were used) and MRPC 1.13 to require knowledge of the act. Because the testimony was not known to be perjured, the lawyer could not reveal confidences or secrets to the tribunal or the opposing party; and although MRPC 3.3(c) gives a lawyer discretion to decline to present evidence whose truthfulness is in serious doubt, that remedy was unavailable to a lawyer already discharged.

Currency note

This opinion was issued in 1989 and interprets the Michigan Rules of Professional Conduct as they then stood. MRPC 3.3 and 1.6 have since been amended, 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: If I only suspect my client lied at a deposition, can I tell the tribunal or the other side?

A: No. The opinion concluded MRPC 3.3 and 1.6(c)(3) are triggered by knowledge, and that "more than a mere suspicion" short of knowledge does not permit revealing the client's confidences or secrets.

Q: Does getting fired end my duty to correct a client's false testimony?

A: No. The opinion concluded that under MRPC 3.3(b) the duty to take reasonable remedial measures continues to the conclusion of the proceeding and survives the lawyer's discharge or withdrawal, where the lawyer knows the testimony was false.

Q: Do I have to investigate whether the testimony was actually false?

A: The opinion concluded a discharged lawyer has no duty to investigate the truth of the testimony, and that the discretion under MRPC 3.3(c) to decline to present doubtful evidence is not available to a lawyer who has already been discharged.

Background and rules framework

The opinion interpreted MRPC 3.3 / Model Rule 3.3 (candor toward the tribunal, including the duty to take remedial measures for false evidence and the continuation of that duty to the conclusion of the proceeding), MRPC 1.6 / Model Rule 1.6 (the confidentiality rule and the rectification exception in Michigan's 1.6(c)(3)), and MRPC 1.13 / Model Rule 1.13 (organization as client). The Committee emphasized that each of these duties turns on the lawyer's knowledge, not suspicion.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / MRPC 3.3(a)(4), (b), (c) (candor to the tribunal; remedial measures; continuation of the duty)
• MR 1.6 / MRPC 1.6(c)(3) (revealing confidences to rectify a client's fraudulent act)
• MR 1.13 / MRPC 1.13 (organization as client)

Other authorities cited:

• Hazard, The Law of Lawyering (Prentice-Hall, 1988 Supplement)
• CI-392: the knowledge standard for false testimony

See also

• ABA Formal Op. 93-376: When a Client Lies in Discovery
• ABA Formal Op. 508: The Ethics of Witness Preparation

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=883&Type=6

Original opinion text

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

RI-13

March 21, 1989

SYLLABUS

A lawyer who knows that a client has given false testimony in a deposition has a duty to rectify the consequences of the client's act.

A lawyer may not reveal client confidences or secrets based on a mere suspicion, rather than knowledge, of a client's false testimony.

Termination of the attorney-client relationship does not discharge the duty of a lawyer to rectify the consequences of a client's fraudulent act.

References: MRPC 1.6(c)(3), 1.13, 3.3(a)(4), 3.3(b), 3.3(c).

TEXT

A lawyer was discharged by the lawyer's clients, a financial institution and its Chief Executive Officer [CEO], the day following the CEO's deposition testimony which was not completed and had been adjourned to a later date. The financial institution and the CEO were defendants, and the lawyer is concerned that the CEO made two statements that could "possibly be considered perjured testimony." The lawyer is not absolutely certain the CEO testified falsely, although the lawyer has "more than a mere suspicion" that the CEO has done so.

The lawyer asks whether there is a duty to correct the deposition of the former client or to advise the tribunal of the former client's tactics.

If a client has presented false testimony at a deposition, the lawyer's duty is clear. Under MRPC 3.3(a)(4), the lawyer shall take reasonable remedial measures to correct the false testimony or rectify the consequence of the client's act. In this case, the lawyer is not certain the deposition testimony was false, and thus there is no duty to correct or rectify.

May a client relieve a lawyer of any duty to take "reasonable remedial measures" to ensure the client's truthful testimony by discharging the lawyer? Under MRPC 3.3(b), "the duties continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6." Discharge or withdrawal of the lawyer does not affect this duty.

Has the client, in effect, coerced the lawyer into being a party to fraud on the court if the testimony turns out to be false? MRPC 3.3 uses the language "knows to be false." The lawyer's "more than a mere suspicion" is not enough. See Hazard, The Law of Lawyering, Prentice-Hall, 1988 Supplement, pp. 354; CI-392. MRPC 3.3(c) gives a lawyer discretion in deciding whether to present evidence whose truthfulness is in serious doubt. But that remedy is not available to a lawyer who has been discharged.

Does a lawyer have an obligation to proceed further to make inquiry in some manner to determine whether the deposition was perjured? MRPC 1.6(c)(3) states:

"(c) A lawyer may reveal:

". . .

"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used."

This Rule also requires knowledge of the illegal or fraudulent act. Similarly, MRPC 1.13 requires "knowledge."

In conclusion, since the deposition testimony is not known to be perjured, the lawyer may not reveal confidences and secrets to the tribunal or to the opposing party. There is no duty to investigate the truth of the testimony once the lawyer is discharged. The termination of the relationship does not affect a lawyer's duty to rectify the client's act if the lawyer had knowledge of perjury.