If a client testified truthfully at deposition but the answer later turns out to be inaccurate, must the lawyer correct it or tell the other side?

Plain-English summary

A lawyer represented the personal representative of an estate in a medical malpractice action. At a deposition, the personal representative was asked whether an exhumation autopsy had been conducted and could not remember. When the lawyer asked about the answer shortly afterward, the personal representative recalled that the autopsy had been authorized but had not remembered during the deposition because it was long in the past. The lawyer, convinced the personal representative was not intentionally untruthful and that the autopsy results did not help the plaintiff (who did not intend to call the pathologist), asked whether the lawyer had to disclose that the autopsy had been authorized and occurred.

The opinion concluded there was no such duty. It set out the framework: a lawyer must seek the client's lawful objectives (MRPC 1.2(a)) and may not counsel fraudulent conduct (MRPC 1.2(c)); MRPC 3.3(a)(2) bars knowingly failing to disclose a material fact to a tribunal when necessary to avoid assisting a client's criminal or fraudulent act; and MRPC 3.3(a)(4) bars knowingly offering false evidence and requires reasonable remedial measures, continuing to the end of the proceeding and even over MRPC 1.6 confidentiality, if a lawyer who offered material evidence later learns of its falsity (citing RI-13 and RI-33). But the opinion concluded the facts showed neither fraudulent or illegal conduct nor materiality: the deposition answer that the witness could not recall was truthful when given, and it was only after the lawyer reminded the personal representative of the exhumation that the activity was recalled. Because the testimony was truthful, the opinion concluded the lawyer had no obligation to correct it or to disclose to the opposing party.

Currency note

This opinion was issued in 1996, before later amendments to the Michigan Rules of Professional Conduct. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer correct a deposition answer that later turns out to be wrong?

A: The opinion concluded that where the answer was truthful when given (the witness genuinely could not recall) and only later proved inaccurate, the lawyer has no duty to correct it.

Q: Does the candor-to-the-tribunal rule require disclosure here?

A: No. The opinion concluded MRPC 3.3(a)(2) and (a)(4) are triggered by false evidence or by a fact necessary to avoid assisting a client's fraud, and the facts showed neither falsity nor fraud.

Q: When would a lawyer have to act?

A: The opinion noted that if a lawyer has offered material evidence and later learns it is false, the lawyer must take reasonable remedial measures, even over confidentiality, through the end of the proceeding.

Q: Did the lawyer have to tell the opposing party?

A: No. The opinion concluded the lawyer had no ethical obligation to make disclosures to the opposing party on these facts.

Background and rules framework

The opinion interpreted MRPC 1.2(a) and (c) (Model Rule 1.2), MRPC 1.6 (Model Rule 1.6, confidentiality), and MRPC 3.3(a)(2) and (a)(4) (Model Rule 3.3, candor to the tribunal and the duty of reasonable remedial measures for false evidence). It relied on RI-13 and RI-33 on a lawyer's duties when a client gives false testimony, and cited Bronston v. United States, 409 US 352 (1973).

Citations and references

Rules of Professional Conduct:

• MR 1.2 / MRPC 1.2(a), (c) (client's objectives; no counseling fraud)
• MR 1.6 / MRPC 1.6 (confidentiality)
• MR 3.3 / MRPC 3.3(a)(2), (a)(4) (candor to the tribunal; remedial measures for false evidence)

Cases:

• Bronston v. United States, 409 US 352 (1973), literally true but unresponsive testimony

Other opinions cited:

• Michigan RI-13, RI-33: a lawyer's duties when a client gives false testimony

See also

• Mich Ethics Op. RI-13: duty when a client gave false deposition testimony
• Mich Ethics Op. RI-33: duty when a client gave false testimony
• Mich Ethics Op. RI-151: duty when a client's filed pleadings are false

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1142&Type=6

Original opinion text

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

RI-272

June 19, 1996

SYLLABUS

A lawyer has no ethical duty to correct or disclose to the opposing party that testimony of the lawyer's client was truthful when made but inaccurate.

References: MRPC 1.2(a) and (c), 1.6, 3.3(a)(2), 3.3(a)(4); RI-13, RI-33; Bronston v. US, 409 US 352 (1973).

TEXT

A lawyer represents the personal representative of an estate in a medical malpractice action. During a deposition, the personal representative was asked and could not remember whether an exhumation autopsy had been conducted. When questioned about that answer by the lawyer shortly after the deposition, the personal representative then remembered that the autopsy had been ordered, but the personal representative did not recall during the deposition having authorized it because it had been "quite a long time in the past."

The lawyer has concluded that the results of the autopsy do not assist the plaintiff in the case, and the plaintiff does not intend to call the pathologist to testify in the matter. The lawyer is convinced that the personal representative was not intentionally untruthful but in fact did not remember. The lawyer asks whether the lawyer is required to disclose that an exhumation autopsy had been authorized and had occurred.

A lawyer is bound to seek the lawful objectives of a client through reasonably available means permitted by law and the rules of professional conduct [MRPC 1.2(a)]. A lawyer is prohibited from counseling a client to engage in conduct that the lawyer knows is fraudulent [MRPC 1.2(c)]. Comments to Rule 1.2 observe that a lawyer is not permitted to reveal a client's wrongdoing, except where permitted by Rule 1.6. The comment further states that, where the client is a fiduciary, the lawyer may be charged with special obligations in dealing with a beneficiary.

MRPC 3.3(a)(2) states:

"(a) A lawyer shall not knowingly

". . .

"(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . ."

MRPC 3.3(a)(4) provides that a lawyer may not knowingly offer evidence that the lawyer knows to be false. See also, RI-13, and RI-33. If the lawyer has offered material evidence and later becomes aware of its falsity, the lawyer is obligated to take reasonable remedial measures. These duties continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

The above authorities, then, provide the basic ethical framework in which inquiries such as presented here are analyzed and addressed. However, the facts presented do not disclose fraudulent or illegal conduct by the personal representative, nor that the information was material to the legal matter. It is only by drawing poorly-grounded inferences from the personal representative's testimony that one could conclude that fraudulent, or even inaccurate, testimony was given.

Here, the personal representative was asked whether an exhumation autopsy had occurred. The personal representative could not recall, and so stated. That testimony was truthful. It was only after the personal representative was later taken aside by the lawyer and reminded of the activities surrounding the exhumation that the personal representative recalled that such activity had been authorized.

Therefore, the inquirer has no ethical obligation to correct the testimony or to make disclosures to the opposing party.