What must a lawyer do after learning a client gave false testimony to a court?

Plain-English summary

The opinion addressed a lawyer whose client testified falsely at a court hearing and afterward told the lawyer the information given to the judge was inaccurate. The lawyer urged the client to advise the judge and opposing counsel immediately, but the client instructed the lawyer not to correct the testimony. On the facts presented, the false testimony was not material or relevant to the issues, no factual issues were in dispute, and no weight or credibility had to be placed on the client's testimony, although the client did intentionally misrepresent the truth.

The Committee read MRPC 3.3(a) and (c) as turning on materiality. Because the lawyer did not know the testimony was false until after it was given, MRPC 3.3(c) (refusing to offer evidence reasonably believed false) did not apply. The Committee observed that where a client has intentionally given false testimony and refuses to authorize correction, it seems unlikely the evidence was in fact immaterial; but if, after careful scrutiny, the lawyer is persuaded the testimony was immaterial, the consequences of MRPC 3.3(a)(2) and (4) do not apply and there is no duty to remedy.

The Committee then turned to MRPC 1.6(c)(3), which permits a lawyer to reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in furtherance of which the lawyer's services were used, and MRPC 1.2(d), requiring the lawyer to consult with the client about the limits on the lawyer's conduct. It concluded that although there is no duty to disclose or rectify immaterial false testimony, if the lawyer concludes the untruthful testimony amounted to fraud, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify it, even over the client's objection.

Currency note

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 Treat this page as historical context, not current guidance.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

Common questions

Q: If a client lied on the stand, must the lawyer always tell the court?

A: Per the opinion, no. The Committee concluded the lawyer must first assess materiality, and there is no duty to disclose or rectify testimony the lawyer is persuaded was immaterial.

Q: Does it matter that the lawyer only learned of the falsity after the testimony?

A: Yes. The opinion concluded that because the lawyer did not know the testimony was false until after it was given, MRPC 3.3(c) did not apply.

Q: Can the lawyer reveal client confidences to correct the record?

A: Per the opinion, the lawyer may, if the untruthful testimony amounted to fraud in which the lawyer's services were used; MRPC 1.6(c)(3) then permits revealing confidences to the extent reasonably necessary to rectify the consequences, even if the client objects.

Background and rules framework

The opinion interprets MRPC 3.3 / Model Rule 3.3 (candor toward the tribunal, including the duty to take remedial measures on learning offered material evidence is false), MRPC 1.6(c)(3) / Model Rule 1.6 (permissive disclosure to rectify a fraud in which the lawyer's services were used), and MRPC 1.2(d) / Model Rule 1.2 (consulting the client about the limits on the lawyer's assistance). The analysis turns on the materiality of the false testimony.

Citations and references

Rules of Professional Conduct:

• MRPC 3.3(a), (c) / Model Rule 3.3 (candor toward the tribunal)
• MRPC 1.6(c)(3) / Model Rule 1.6 (rectifying a client's fraud)
• MRPC 1.2(d) / Model Rule 1.2 (limits on assistance)

Other opinions cited:

• CI-392 (compare; false testimony)

See also

• Mich Ethics Op. RI-55: Disclosure of Lawyer Status in Administrative Proceedings
• ABA Formal Op. 93-375: Disclosure Adverse to Client in a Bank Examination

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=903&Type=6

Original opinion text

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

RI-33

October 17, 1989

SYLLABUS

A lawyer who learns that a client has falsely testified before a tribunal must first determine whether that false testimony is material.

Although there is no duty to disclose or to rectify the consequences of a client's untruthful testimony which is not material, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's fraudulent act, in the furtherance of which the lawyer's services were used.

References: MRPC 1.2(d), 1.6(c)(3), 3.3(a) and (c).

TEXT

A client testified falsely in a court hearing, and afterwards advised the lawyer that inaccurate information had been given to the judge. The lawyer urged the client to immediately advise the judge and opposing counsel of the error. The client instructed the lawyer not to correct the testimony. The false testimony was not material or relevant to the facts at issue, no factual issues were in dispute in the matter, and there was no need to place weight or credibility on the client's testimony. The client did intentionally misrepresent the truth. The lawyer asks whether there is a duty to advise the court or withdraw from the matter.

MRPC 3.3(a) and (c) require that:

"(a) A lawyer shall not knowingly:

"(1) make a false statement of material fact or law to a tribunal;

"(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;

". . .

"(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures . . . .

". . .

"(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false."

In this inquiry there is no question that the testimony is false. Compare, CI-392. The lawyer did not know client's testimony was false until after the testimony was given, thus MRPC 3.3(c) does not apply.

Where a client has intentionally given false testimony and refuses to authorize the lawyer to rectify the error, it seems unlikely that the evidence in question was in fact immaterial. Nevertheless, if after careful scrutiny the lawyer is persuaded that the testimony was in fact immaterial, the MRPC 3.3 consequences do not apply. If the lawyer is satisfied the testimony was not material the duties under MRPC 3.3(a)(2) and (4) do not apply. Likewise, if the testimony was not material the lawyer has no duty to remedy under MRPC 3.3(a)(4).

MRPC 1.6(c)(3) states, "A lawyer may reveal . . . 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 . . . ."

MRPC 1.2(d) states, "When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."

Therefore, although there is no duty to disclose or to rectify the consequences of the client's testimony, if the lawyer concludes the untruthful testimony amounted to fraud, the lawyer may reveal confidences and secrets to the extent reasonably necessary to rectify the consequences of the fraudulent act, in the furtherance of which the lawyer's services were used, even if the client objects.