If a lawyer learns that the client has committed perjury, must the lawyer disclose it to the court?

Plain-English summary

The committee was asked whether a lawyer who learns information showing the client's guilt, specifically that the client has committed perjury, has a duty to disclose that information to the court. It answered yes.

The committee quoted Rule 3.3 (Candor Toward the Tribunal), which provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal, fail to disclose a material fact when disclosure is necessary to avoid assisting a client's criminal or fraudulent act, fail to disclose directly adverse controlling legal authority not disclosed by opposing counsel, or offer evidence the lawyer knows to be false. The rule further provides that if a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures. The committee concluded that this rule trumps the confidentiality provisions of Rule 1.6, so the attorney has an affirmative obligation to inform the court of known perjury.

Currency note

This opinion was issued in 1987, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct. The duty surrounding client perjury and false evidence is one of the most heavily revised areas of Rule 3.3, both in the Model Rules and in state adoptions; the rule now sets out a specific sequence of remedial measures. Treat this page as historical context, not current guidance.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: Does confidentiality let a lawyer stay silent about the client's perjury?

A: No. The opinion states that Rule 3.3 trumps the Rule 1.6 confidentiality provisions, creating an affirmative obligation to inform the court of known perjury.

Q: What does Rule 3.3 require when a lawyer has already offered false evidence?

A: The opinion quotes Rule 3.3(a)(4): if a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

Q: Does the duty of candor reach more than false testimony?

A: Yes. As quoted in the opinion, Rule 3.3 also bars knowingly making a false statement of fact or law to the tribunal and failing to disclose controlling adverse legal authority not disclosed by opposing counsel.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 3.3 (Candor Toward the Tribunal; Model Rule 3.3) and its relationship to the confidentiality rule, Rule 1.6 (Model Rule 1.6), concluding that the candor duty prevails where the two conflict.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 3.3 (candor toward the tribunal) / Model Rule 3.3
• Mont. R. Prof. Cond. 1.6 (confidentiality of information) / Model Rule 1.6

See also

• State Bar of Montana Ethics Op. 870522: Candor and the Basis for a Workers' Comp Lump-Sum Award
• ABA Formal Op. 508: The Ethics of Witness Preparation

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/Site Resources/Ethics Opinions/1.6 confidentiality/870326.pdf

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: Does a lawyer who finds out information concerning guilt (i.e. perjury) of his client have a duty to disclose the information to the court?

ANSWER: Yes.

ANALYSIS: Rule 3.3, Candor Toward the Tribunal, provides in pertinent part:

(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;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;

(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.

This rule trumps the Rule 1.6 Confidentiality provisions. There is an affirmative obligation for the attorney to inform the court of known perjury.

                         THIS OPINION IS ADVISORY ONLY