What must a New Hampshire lawyer do when a non-client witness the lawyer called testifies falsely at a hearing?

Plain-English summary

The Committee answered a lawyer who called a non-client witness, had interviewed the witness beforehand, and believed the witness then lied at the hearing. The opinion explains that a lawyer has a duty under Rule 3.3 not to offer false testimony and to take remedial action if the lawyer learns false testimony has been presented, a duty the New Hampshire Supreme Court has repeatedly emphasized and that takes precedence over the duty of confidentiality under Rule 3.3(d). The duty applies only when the lawyer "knows" the testimony is false; a mere suspicion or even a reasonable belief short of actual knowledge does not trigger it, though knowledge may be inferred from the circumstances under Rule 1.0(f). When the lawyer learns of the falsity after the fact, the remedial duty applies only if the testimony was material, and the duty ends at the conclusion of the proceeding.

On offering evidence, the opinion ties Rule 3.3(a)(3) and Rule 3.4(b) to the New Hampshire attorney's oath under RSA 311:6 and a line of disciplinary cases (Kalil's Case, Basbanes' Case, Nardi's Case, Feld's Case, Bruzga's Case) and to Nix v. Whiteside. It distinguishes the non-client witness situation from the harder problem of a criminal defendant who wants to testify, noting the constitutional concerns do not arise with a non-party witness. Drawing on ABA Comment 6, it explains that anticipated partial falsity does not bar the witness entirely: the lawyer may call the witness but may not elicit or permit the testimony the lawyer knows is false.

On the knowledge standard, the opinion canvasses the difficulty courts have had and, considering Mesmer's Case and the New Hampshire Supreme Court's emphasis on candor, suggests the best standard for New Hampshire lawyers is the "firm basis in objective fact" test adopted in Massachusetts and other jurisdictions and recommended by the Restatement: a lawyer should not conclude testimony is false absent a firm factual basis, but may not ignore a plainly apparent falsehood. On remedial measures, citing ABA Comment 10 and State v. Newton, the proper course is to confidentially remonstrate with the client, advise of the duty of candor, and seek correction; if that fails, the lawyer must disclose to the tribunal as reasonably necessary, even over Rule 1.6, and the tribunal decides what to do. The opinion notes its prior Advisory Opinion 2008-09/03 on remedial measures and discusses the prosecutor's distinct constitutional duty to correct false testimony (State v. Yates, Glossip v. Oklahoma, Napue v. Illinois).

In practice

The opinion holds that a New Hampshire lawyer who knows a non-client witness gave false testimony must take reasonable remedial measures under Rule 3.3, up to disclosure to the tribunal, and that this duty overrides confidentiality. The duty turns on actual knowledge (a "firm basis in objective fact"), not suspicion or reasonable belief; a lawyer may still call a witness expected to be only partly untruthful but may not elicit the testimony known to be false. When falsity is discovered after the fact, the remedial duty applies only to material testimony and ends when the proceeding concludes (a final judgment affirmed on appeal or the time for review passed). The recommended sequence is to remonstrate with the client confidentially, seek correction, and, failing that, disclose as necessary. The opinion separately notes that prosecutors carry a constitutional duty to correct false testimony.

Common questions

Q: A witness I called, who is not my client, just lied on the stand. What do I have to do?

A: If you know the testimony is false, the opinion says Rule 3.3 requires reasonable remedial measures, including disclosure to the tribunal if necessary, and that duty takes precedence over your duty of confidentiality.

Q: What if I only suspect the witness lied?

A: Suspicion is not enough. The opinion explains the duty applies only when the lawyer "knows" the testimony is false, and recommends a "firm basis in objective fact" standard, though knowledge may be inferred from the circumstances and a lawyer cannot ignore an obvious falsehood.

Q: Can I still call a witness if I expect part of the testimony to be false?

A: Yes, as to the truthful parts. Citing ABA Comment 6, the opinion says the lawyer may call the witness but may not elicit or otherwise permit the testimony the lawyer knows is false.

Q: Does it matter when I find out the testimony was false?

A: Yes. The opinion explains that if the lawyer learns of the falsity after the fact, the remedial duty applies only if the testimony was material, and the duty ends at the conclusion of the proceeding.

Q: What are the remedial steps?

A: The opinion, following ABA Comment 10 and State v. Newton, describes confidentially remonstrating with the client, advising of the duty of candor, and seeking correction; if that fails, the lawyer must disclose to the tribunal as reasonably necessary, even over Rule 1.6, and the tribunal decides the remedy.

Background and rules framework

The opinion interprets New Hampshire Rule 3.3 (candor toward the tribunal), including 3.3(a)(1) and (a)(3) (offering and correcting false evidence) and 3.3(d) (precedence over confidentiality and the conclusion-of-proceeding limit), Rule 1.0(f) (the definition of "knows," allowing inference from circumstances), Rule 3.4(b) (falsifying evidence; no materiality element), Rule 8.4(a) and (c) (misconduct and dishonesty), and Rule 1.2(d). It grounds the analysis in the New Hampshire attorney's oath (RSA 311:6) and a body of New Hampshire disciplinary and criminal decisions, plus federal authority on the constitutional duty to correct false testimony.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / NH Rule 3.3, 3.3(a)(1), 3.3(a)(3), 3.3(d) (candor toward the tribunal)
• MR 3.4 / NH Rule 3.4(b) (fairness; falsifying evidence)
• MR 8.4 / NH Rule 8.4(a), (c) (misconduct)
• MR 1.2 / NH Rule 1.2(d); NH Rule 1.0(f) (definition of "knows")

Statutes:

• RSA 311:6 (New Hampshire attorney's oath)

Cases:

• Mesmer's Case, 173 N.H. 96 (2020); Feld's Case, 149 N.H. 19 (2002); Bruzga's Case, 145 N.H. 62 (2000); Nardi's Case, 142 N.H. 602 (1998); Basbanes' Case, 141 N.H. 1 (1995); Kalil's Case, 146 N.H. 466 (2001)
• State v. Newton, 175 N.H. 279 (2022); State v. Yates, 137 N.H. 495 (1993); State v. Girard, 173 N.H. 619 (2020)
• Nix v. Whiteside, 475 U.S. 157 (1986); Glossip v. Oklahoma, 604 U.S. 226 (2025); Napue v. Illinois, 360 U.S. 264 (1959)
• Commonwealth v. Mitchell, 781 N.E.2d 1237 (Mass. 2003) ("firm basis in objective fact")

Other opinions cited:

• NH Ethics Committee Advisory Opinion 2008-09/03, Remedial Measures Under Rule 3.3
• ABA Model Rule 3.3, 2004 Comments 5, 6, 8, 10, 13
• Restatement (Third) of the Law Governing Lawyers § 120 cmt. c

See also

• NH Bar Ethics Op. 2008-09/03: Remedial Measures Under Rule 3.3
• 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.nhbar.org/2025-26-01-false-testimony-by-a-non-client-witness/
• Original PDF: https://nhba.s3.amazonaws.com/wp-content/uploads/2025/12/09115005/Ethics-Opinion-False-Testimony-by-a-Non-Client-Witness.pdf

Original opinion text

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

NEW HAMPSHIRE BAR ASSOCIATION
False Testimony by a Non-Client Witness
Ethics Committee Opinion #2025-26/01

ABSTRACT

When a lawyer knows that a non-client witness has testified falsely, the lawyer had a duty to take
reasonable remedial measures notwithstanding the duty of confidentiality. If the lawyer learns of
the falsity after the conclusion of the testimony but before the proceeding is concluded, and if the
testimony was material, then the lawyer still had a duty to take reasonable remedial measures to
correct the false testimony. In deciding whether the lawyer knows the testimony is false, the
lawyer should use a “firm basis in objective fact” test recognizing that knowledge may be
inferred from the circumstances.

ANNOTATIONS:
• A lawyer has an important duty to not offer false testimony and to take remedial action if
the lawyer learns that false testimony has been presented. N.H. R. Prof. Cond. 3.3.
• The duty only applies when the lawyer “knows” the testimony is false. N.H. Rs. Prof.
Cond. 3.3(a)(1), 3.3(a)(3).
• Knowledge may be inferred from the circumstances, but the duty is not implicated by a
mere suspicion or even a personal belief, short of actual knowledge, that the witness’s
testimony is false. N.H. R. Prof. Cond. 3.3 2004 ABA Model Comment [8]; N.H. R. Prof.
Cond. 1.0(f).
• When the lawyer learns after the fact that testimony was false, the duty to take remedial
measures only applies if the testimony was “material.” N.H. Rs. Prof. Cond. 3.3(a)(1),
3.3(a)(3).
• The duty to not offer false testimony terminates “at the conclusion of the proceeding.”
N.H. R. Prof. Cond. 3.3(d); 2004 ABA Model Code Comment [10].
OPINION
Question Presented to the Committee
I called a witness to testify at a hearing. The witness is not my client. I had interviewed the
witness before the hearing. At the hearing the witness testified differently than I expected. I
think the witness lied at the hearing. What are my obligations?

Discussion
Generally, a lawyer has an important duty to not offer false testimony and to take remedial action
if the lawyer learns that false testimony has been presented. N.H. R. Prof. Cond. 3.3. The New
Hampshire Supreme Court has repeatedly emphasized lawyers’ duties of honesty and integrity.
See, e.g., Saloman’s Case, 171 N.H. 694, 706 (2019). The duty of candor to the court is so
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important that it takes precedence over the duty of confidentiality to the client. N.H. R. Prof.
Cond. 3.3(d). Nonetheless, there are important limitations on the duty of candor. The duty only
applies when the lawyer “knows” the testimony is false. N.H. Rs. Prof. Cond. 3.3(a)(1),
3.3(a)(3). Knowledge may be inferred from the circumstances, but the duty is not implicated by a
mere suspicion or even a personal belief, short of actual knowledge, that the witness’s testimony
is false. N.H. R. Prof. Cond. 3.3 2004 ABA Model Comment [8]; N.H. R. Prof. Cond. 1.0(f). In
addition, when the lawyer learns after the fact that testimony was false, the duty to take remedial
measures only applies if the testimony was “material.” N.H. Rs. Prof. Cond. 3.3(a)(1), 3.3(a)(3).
Finally, the duty ends “at the conclusion of the proceeding.” N.H. R. Prof. Cond. 3.3(d); 2004
ABA Model Code Comment [10].

A Lawyer May Not Knowingly Offer False Evidence.

All attorneys in New Hampshire take an oath, pursuant to RSA 311:6, swearing or affirming that
they “will do no falsehood, nor consent that any be done in the court, and if [they] know of any,
that [they] will give knowledge thereof to the justices of the court, or some of them, that it may
be reformed[.]” RSA 311:6. See also Kalil’s Case, 146 N.H. 466, 467 (2011) (noting that every
lawyer admitted to practice in the state takes an oath that has been required for more than 150
years and that the lawyer in question “failed to honor this obligation” by lying to judge); Ricker’s
Petition, 66 N.H. 207, 236-37, 240 (1890) (observing that attorneys are a class of individuals “to
whose diligence, integrity, ability, and honor much is necessarily confided” and, therefore, whose
“honesty, probity, and good demeanor” is ensured by oath).

The New Hampshire Supreme Court has explained, therefore, that the “privilege of practicing
law does not come without the concomitant responsibility of truth, candor and
honesty.” Basbanes’ Case, 141 N.H. 1, 7 (1995) (quotation and citation omitted). “[B]ecause ‘no
single transgression reflects more negatively on the legal profession than a lie,’ attorney
misconduct involving dishonesty also justifies disbarment.” Nardi’s Case, 142 N.H. 602, 606
(1998) (quoting Budnitz’ Case, 139 N.H. 489, 492 (1995)). See also Basbanes’ Case, 147 N.H. at
1-2 (ordering attorney disbarred for presenting false testimony to marital master in client’s
divorce proceeding). “Intentionally assisting in the promulgation of false answers is…inherently
dishonest.” Feld’s Case, 149 N.H. 19, 29 (2002). In “cases involving dishonesty, a lawyer must
admit to his professional misconduct to truly demonstrate remorse.” Id. at 30.

The Rules of Professional Conduct state that a “lawyer shall not knowingly…offer evidence that
the lawyer knows to be false[.]” N.H. R. Prof. Cond. 3.3(a)(3). See also Bruzga’s Case, 145 N.H.
62, 67 (2000) (“Rule 3.3(a)(3) prohibits a lawyer from ‘knowingly . . . offering evidence that the
lawyer knows to be false.’”); Young’s Case, 154 N.H. 359, 365 (2006). See generally N.H. R.
Prof. Cond. 1.2(d) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct
that the lawyers knows is…fraudulent…”). If a lawyer calls a witness who “offered material
evidence” and the lawyer “comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.” N.H. R. Prof. Cond. 3.3(a)(3). “A
lawyer may refuse to offer evidence…that the lawyer reasonably believes is false.” Id. These
duties take precedence over the duty of confidentiality in Rule 1.6. N.H. R. Prof. Cond. 3.3(d).

Similarly, Rule 3.4 requires that a “lawyer shall not falsify evidence, counsel or assist a witness
to testify falsely.” N.H. R. Prof. Cond. 3.4(b). It is irrelevant whether the witness is ultimately

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indicted for perjury. See Feld’s Case, 149 N.H. at 24-25 (lawyer “violated Rule 3.4(b) by
assisting his client in providing false testimony” and noting that “Rule 3.4(b) contains no
materiality requirement,” unlike the perjury statute). It is professional misconduct for an attorney
to violate or attempt to violate the Rules of Professional Conduct, including by engaging “in
conduct involving dishonesty, fraud, deceit or misrepresentation[.]” N.H. Rs. Prof. Cond. 8.4(a),
8.4(c).

The United States Supreme Court has similarly stated that “there is no right whatever –
constitutional or otherwise – for a defendant to use false evidence.” Nix v. Whiteside, 475 U.S.
157, 173 (1986). Furthermore, counsel’s “duty is limited to legitimate, lawful conduct
compatible with the very nature of a trial as a search for truth,” and although “counsel must take
all reasonable lawful means to attain the objectives of the client, counsel is precluded from
taking steps or in any way assisting the client in presenting false evidence or otherwise violating
the law.” Id. at 166.

The American Bar Association’s 2004 Commentary to its Model Rules provide further
clarification as to the scope of an attorney’s obligations regarding false witness testimony. These
comments matter because, while not binding, the New Hampshire Supreme Court has looked at
them for guidance. See, e.g., State v. Collins, 2024 N.H. 7, ¶ 16; State v. Newton, 175 N.H. 279,
289-290 (2022); Clauson’s Case, 164 N.H. 183 (2012). The American Bar Association’s 2004
Commentary to Model Rule 3.3 explains that,

   Paragraph (a)(3) requires that the lawyer refuse to offer evidence that the lawyer knows
   to be false, regardless of the client’s wishes. This duty is premised on the lawyer’s
   obligation as an officer of the court to prevent the trier of fact from being misled by
   false evidence….

N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [5]. Unlike the far more complicated
situation where a criminal defendant wants to testify and the lawyer knows the defendant will lie,
a lawyer cannot knowingly have a non-client witness testify falsely. The issues which arise with
respect to a criminal defendant’s constitutional rights do not arise when the person providing
false testimony is a non-party witness.

However, anticipated false testimony by a witness does not mean that the witness is entirely
barred from testifying. As Comment [6] explains,

   …If only a portion of a witness’s testimony will be false, the lawyer may call the witness
   to testify but may not elicit or otherwise permit the witness to present the testimony that
   the lawyer knows is false.

N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [6]. Thus, if a lawyer knows a witness
will testify falsely on some things but not others, the lawyer can still call the witness to testify
but can only elicit testimony that the lawyer does not know to be false.

The Prohibition Only Applies When the Lawyer “Knows” the Testimony Is False.

The most difficult and important question in this context is whether the lawyer “knows”
3
testimony is false. The question is not whether the lawyer suspects or even reasonably believes
that the testimony is false. The question is whether the lawyer knows the testimony is false.
Comment [8] adds,

   The prohibition against offering false evidence only applies if the lawyer knows that the
   evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its
   presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can
   be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should
   resolve doubts about the veracity of testimony or other evidence in favor of the client, the
   lawyer cannot ignore an obvious falsehood.

N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [8]. The critical distinction is between
testimony the lawyer “knows” to be false and testimony the lawyer “reasonably believes to be
false.” The lawyer’s subjective belief, even the lawyer’s reasonable subjective belief, does not
alone establish that the lawyer “knows” the testimony is false. Where the lawyer reasonably
believes that a witness will testify falsely but does not “know” that the witness will testify falsely,
Comment [8] suggests that the lawyer should resolve doubts in favor of the client. Id.

New Hampshire Rule of Professional Conduct 1.0(f) provides: “‘Knowingly,’ ‘known,’ or
‘knows’ denotes actual knowledge of the fact in question” and “a person’s knowledge may be
inferred from the circumstances.” The New Hampshire Supreme Court has only once mentioned
Rule 1.0(f) and what constitutes “knowingly” in the attorney context. See Mesmer’s Case, 173
N.H. 96, 106 (2020). The lawyer had repeatedly lied to his client, opposing counsel, and the
court about various pleadings. Id. at 98-104. The lawyer claimed he was “unable to ‘knowingly’
make false statements to the court” because of his sleep apnea. Id. at 104-05. The Supreme Court
looked at the “extensive circumstantial evidence” in the lawyer’s emails and admissions, and his
failure to conduct “a simple review of the docket or a call to the court” to conclude that the
lawyer’s misrepresentations were made “knowingly” and in violation of Rule 3.3. Id. at 107-08.
However, besides looking at the circumstantial evidence in the case, the Court did not address
the precise standard for when a lawyer “knows” something to be false. Importantly, the Court
appeared to apply an “objective fact standard” by looking at the external facts available and not
the subjective understanding (reasonable basis) of the lawyer. Other courts have struggled with
the issue. See, e.g., State v. Chambers, 994 A.2d 1248, 1259 n. 13 (Conn. 2010) (collecting cases
and surveying the literature); People v. Calhoun, 815 N.E.2d 492, 502 (Ill. 2004) (describing five
different tests used by state and federal courts).

Considering our Court’s emphasis on the duty of candor and the analysis in Mesmer’s Case, the
best standard for New Hampshire lawyers to use may be the “firm basis in objective fact”
standard, which has been adopted in Massachusetts and other jurisdictions, including state and
federal courts. See Commonwealth v. Mitchell, 781 N.E.2d 1237, 1248 (Mass. 2003); People v.
Riel, 998 P.2d 969 (Cal. 2000); Chambers, 994 A.2d at 1259 n.13; Brown v. Commonwealth, 226
S.W.3d 74, 81-85 (Ky. 2007); Calhoun, 815 N.E.2d at 502-05; State v. Abdullah, 348 P.3d 1, 129
(Idaho 2015); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir. 1977); United
States v. Long, 857 F.2d 436, 445-46 (8th Cir. 1988); Lord v. Wood, 184 F.3d 1083, 1095 n.9 (9th
Cir. 1999).

A “firm factual basis standard” is also the standard that the Restatement of the Law Governing
4
Lawyers recommends. As it explains:

   A lawyer’s knowledge may be inferred from the circumstances. Actual knowledge does
   not include unknown information, even if a reasonable lawyer would have discovered it
   through inquiry. However, a lawyer may not ignore what is plainly apparent, for example,
   by refusing to read a document. A lawyer should not conclude that testimony is or will be
   false unless there is a firm factual basis for doing so. Such a basis exists when facts
   known to the lawyer or the client’s own statements indicate to the lawyer that the
   testimony or other evidence is false.

Restatement (Third) of the Law Governing Lawyers § 120 cmt. c. (2000) (citation omitted).

The Lawyer Has a Duty to Take Remedial Measures If the Lawyer Knows False Testimony Has
Been Offered.

Finally, under Rule 3.3(a)(3), when a lawyer “has offered material evidence and comes to know
of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary,
disclosure to the tribunal.”

   …In such situations, the advocate’s proper course is to remonstrate with the client
   confidentially, advise the client of the lawyer’s duty of candor to the tribunal and seek the
   client’s cooperation with respect to the withdrawal or correction of the false statements or
   evidence. If that fails, the advocate must take further remedial action. If withdrawal from
   the representation is not permitted or will not undo the effect of the false evidence, the
   advocate must make such disclosure to the tribunal as is reasonably necessary to remedy
   the situation, even if doing so requires the lawyer to reveal information that otherwise
   would be protected by Rule 1.6. It is for the tribunal then to determine what should be
   done — making a statement about the matter to the trier of fact, ordering a mistrial or
   perhaps nothing.

N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [10].

Importantly, when the lawyer learns after the fact that false testimony was offered, Rules
3.3(a)(1) and (3) limit the duty to take remedial action to circumstances where the evidence was
“material.” Evidence is “‘material only if there is a reasonable probability that’ disclosure of
the evidence will produce a different result in the proceeding.” State v. Girard, 173 N.H. 619,
628-29 (2020) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)); Porter v. Coco,
154 N.H. 353, 356 (2006) (“An issue of fact is material if it affects the outcome of the
litigation.”) (quotation and citation omitted). “A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.” Girard, 173 N.H. at 629 (quoting Bagley,
473 U.S. at 682). See also State v. Yates, 137 N.H. 495, 503 (1993) (Thayer, J., dissenting).

In addition, the duty to take remedial action “continue[s] to the conclusion of the proceeding.”
N.H. R. Prof. Cond. 3.3(d). The New Hampshire Supreme Court has never addressed what counts
as the “conclusion of the proceeding.” The Commentary to Rule 3.3 explains that

                                             5
   A practical time limit on the obligation to rectify false evidence or false statements of law
   and fact has to be established. The conclusion of the proceeding is a reasonably definite
   point for the termination of the obligation. A proceeding has concluded within the
   meaning of this Rule when a final judgment in the proceeding has been affirmed on
   appeal or the time for review has passed.

N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [13]. See also Holden v. Blevins, 837
A.2d 1053, 1057 (Md. App. 2003) (holding that “a ‘proceeding’ has not concluded until the appeal
rights of every party to that proceeding have been exhausted, including the right to petition…for
certiorari”) (quotation and citation omitted); N.H. Super. Ct. R. 46(c)(2) (rules governing final
judgments in civil cases). Thus, for example, if a final judgment has been rendered in the case
and the deadlines for any appeal have passed, the duty to correct false testimony no longer
applies.

The New Hampshire Supreme Court, in State v. Newton, 175 N.H. 279 (2022), explained that
while N.H. R. Prof. Cond. 3.3 requires that a lawyer not knowingly offer evidence that the
lawyer knows to be false and requires the lawyer to take reasonable remedial measures if false
material is presented, “there is no requirement that a disclosure necessary to remedy the false
testimony be a specific form of evidence.” Id. at 289. The Court embraced Comment [10],
finding that the lawyer’s proper course would be “to remonstrate with the client confidentially,
advise the client of the lawyer’s duty of candor to the tribunal and seek the client’s cooperation
with respect to withdrawal or correction of the false statement of evidence.” Id. at 289-90
(quoting N.H. R. Prof. Cond. 3.3 2004 ABA Model Code Comment [10]). The New Hampshire
Bar Association Ethics Committee has also issued an advisory opinion on the topic. See
Advisory Opinion #2008-09/03, Remedial Measures Under Rule 3.3. This Ethics Opinion
focuses on the duty of the lawyer to make a disclosure to the court when the lawyer discovers that
false testimony has been offered. The attorney is to try to convince the client to explain the
discrepancy, admit error, or otherwise correct the apparent falsehood. If the client is unwilling to
do so, the attorney is under an ethical duty to disclose the falsity to the tribunal.

Our Court’s approach to an attorney’s duties of truth and candor are exemplified by Feld’s Case.
149 N.H. 19. The Supreme Court’s then-Committee on Professional Conduct filed a petition to
disbar an attorney for assisting his client in providing false testimony in interrogatories and
depositions. Id. at 20, 24-28. The Supreme Court agreed that the lawyer repeatedly violated N.H.
R. Prof. Cond. 3.4. Id. at 25-28. In determining the appropriate sanction, the Court reiterated the
holding from Nardi’s Case that “no single transgression reflects more negatively on the legal
profession than a lie.” Feld’s Case, 149 N.H. at 28-29. Furthermore, “[i]ntentionally assisting in
the promulgation of false answers is…inherently dishonest.” Id. at 29. To correct his misconduct,
the lawyer, “at the very least, had to bring his misconduct to the attention of [the opposing party]
or the court before the trial began.” Id. at 30 (italics in original). A lawyer must act quickly to
correct the false testimony because a “good faith remedy for misconduct…must be timely to be
mitigating.” Id. at 29 (citing Welt’s Case, 136 N.H. 588, 593 (1993)). Thus, in Feld’s Case,
“commensurate with the discipline” the Court has “imposed in cases involving intentional deceit
during litigation,” the lawyer was suspended from the practice of law for one year. Id.

                                             6

In another instance, in State v. Yates, a witness for the prosecution testified to never “having
anything to do with illegal drugs” even though the witness had a pending indictment for
possession of an illegal drug. 137 N.H. at 497 (italics in original). The prosecutor knew about
the indictment. Id. Accepting the defendant’s due process claim, the New Hampshire Supreme
Court noted that a “lawyer’s duty of candor to the tribunal, N.H. R. Prof. Conduct 3.3(a)(3), is
neglected when the prosecutor’s office relies on a witness’s denial of certain conduct in one
case after obtaining an indictment charging the witness with the same conduct in another case.”
Yates, 137 N.H. at 499. The “final responsibility rested with the prosecutor…to bring to the
attention of the court and the jury the State’s official position that [the witness] was indeed
probably involved with illegal drugs, and his testimony to the contrary was probably false.” Id.
at 500 (citation omitted). “The duty to correct false testimony is on the prosecutor, and that
duty arises when the false evidence appears.” Id. (quoting United States v. Foster, 874 F.2d
491, 495 (8th Cir. 1988)).

Quite recently, the United States Supreme Court held that a death row prisoner was entitled to a
new trial because prosecutors failed to correct a witness’s false testimony, despite their
constitutional obligation to do so. Glossip v. Oklahoma, 604 U.S. 226, 231 (2025). The Court
reiterated the holding of Napue v. Illinois, 360 U.S. 264 (1959) “a conviction knowingly
obtained through use of false evidence violates the Fourteenth Amendment’s Due Process
Clause.” Glossip, 604 U.S. at 246 (quotation and citation omitted). Where the prosecution
“knowingly solicited false testimony or knowingly allowed it to go uncorrected when it
appeared,” and the uncorrected evidence was material, the defendant is entitled to a new trial. Id.
(cleaned up). It was irrelevant that defense counsel knew or should have known about the false
evidence, because “the Due Process Clause imposes the responsibility and duty to correct false
testimony on representatives of the State, not on defense counsel.” Id. at 252 (quotation and
citation omitted).

Conclusion

Applying the principles set forth above to the question asked, if the lawyer knew the testimony
was false when offered, the lawyer had a duty to take reasonable remedial measures
notwithstanding the duty of confidentiality. If the lawyer later learned of the falsity of the
testimony, and if the testimony was material, and if the proceeding has not concluded, then the
lawyer still had a duty to take reasonable remedial measures.

NH RULES OF PROFESSIONAL CONDUCT (in order of appearance):
Rule 3.3
Rule 3.3(d)
Rule 3.3(a)(1)
Rule 3.3(a)(3)
Rule 1.0(f)
Rule 3.3(d)
Rule 1.2(d)
7
Rule 3.4(b)
Rule 8.4(a)
Rule 8.4(c)
Rule 3.4
NH ETHICS COMMITTEE OPINIONS AND ARTICLES:
N.H. Bar Association Ethics Committee, Advisory Op. #2008-09/03, Remedial Measures Under
Rule 3.3 (2008).
SUBJECTS:
Knowing
Candor to the tribunal
Remedial measures
Truthfulness in statements to others
By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its November 20,
2025 meeting.