What must a lawyer do after a case ends if they learn that material evidence they or their client offered was false?

Plain-English summary

The committee addresses the lawyer's duty when, after a proceeding has ended, the lawyer comes to know that material evidence offered by the lawyer, the lawyer's client, or a witness the lawyer called was false. Rule 3.3(a)(3) requires the lawyer to take "reasonable remedial measures, including, if necessary, disclosure to the tribunal," and Rule 3.3(c) makes that obligation override the Rule 1.6 duty of confidentiality. The duty arises only for evidence that was "material" (of a kind that could have changed the result), is fact-specific, and applies whether the falsity was intentional or inadvertent. To "know" of the falsity, the lawyer must have actual knowledge, which may be inferred from circumstances.

A central question is how long the duty lasts. New York's Rule 3.3, unlike the ABA Model Rule, omits the language ending the obligation "to the conclusion of the proceeding." The committee concludes that the courts' deliberate rejection of that endpoint means the duty survives the conclusion of the proceeding, agreeing with NYSBA Opinions 831 and 837. But the duty is not perpetual: because Rule 3.3(a)(3) requires only reasonable "remedial" measures, the duty ends when no remedial measure remains, that is, when it is no longer possible for the original tribunal to reopen the matter and no longer possible for another tribunal to amend, modify, or vacate the judgment based on the new evidence. The opinion stresses (citing CPLR 5015 and Federal Rules 59 and 60) that understanding the relevant procedural law is essential to determining whether a remedial measure is still available.

On the measures themselves, the lawyer should first remonstrate with the client and seek the client's cooperation in correcting the record. If the client will not cooperate or cannot be located, the lawyer must disclose: to the tribunal that received the false evidence where that tribunal can reopen the matter (with simultaneous disclosure to opposing counsel), or to opposing counsel (or the opposing party, where opposing counsel no longer represents them and there is no successor counsel) where a different tribunal could vacate the judgment. Disclosure must be narrowly tailored to what is reasonably necessary to remedy the fraud. The committee adds that "reasonable" measures can require substantial work, such as locating old files and former clients and drafting submissions, but should not force the lawyer into insolvency or jeopardize the lawyer's duties to other clients.

In practice

The opinion holds that, under the New York rules as they stood at the time, the Rule 3.3(a)(3) remedial duty for material false evidence continues past the end of the proceeding and overrides confidentiality (Rule 3.3(c)), ending only when no remedial measure remains. Per the opinion, the lawyer's first step is to remonstrate with the client; absent the client's cooperation, the lawyer discloses to the tribunal where reopening is possible, or to opposing counsel or the opposing party where another tribunal could vacate the judgment, in each case limited to what is reasonably necessary to remedy the fraud.

Common questions

Q: A case is over and I just learned my client's evidence was false. Do I still have to do anything?

A: Yes. The opinion concludes that in New York the Rule 3.3(a)(3) duty to take reasonable remedial measures survives the conclusion of the proceeding, so long as a remedial measure remains available.

Q: Doesn't confidentiality protect what I learned?

A: The opinion concludes Rule 3.3(c) makes the remedial obligation override Rule 1.6 confidentiality; the committee notes Rule 3.3 is the only mandatory exception to confidentiality in New York.

Q: What exactly do I have to do?

A: Per the opinion, first remonstrate with the client and seek cooperation to correct the record. If that fails, disclose to the tribunal where the matter can be reopened, or to opposing counsel or the opposing party where another tribunal could vacate the judgment, limiting disclosure to what is reasonably necessary.

Q: Does this duty ever end?

A: Yes. The opinion concludes the duty ends when no reasonable remedial measure remains, that is, when neither the original tribunal can reopen the matter nor another tribunal can amend, modify, or vacate the judgment based on the new evidence.

Background and rules framework

The opinion interprets New York Rule 3.3 (candor toward the tribunal; Model Rule 3.3), particularly Rule 3.3(a)(3) (remedial measures for false material evidence) and Rule 3.3(c) (the obligation overrides Rule 1.6), against Rule 1.6 (confidentiality; Model Rule 1.6) and the Rule 1.0(k) and 1.0(w) definitions of "knows" and "tribunal." It contrasts New York's omission of the ABA "conclusion of the proceeding" endpoint with the ABA rule and other states' versions.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / NY RPC 3.3(a)(3), 3.3(c) (candor to tribunal; remedial measures; override of confidentiality)
• Model Rule 1.6 / NY RPC 1.6 (confidentiality)

Statutes and rules:

• N.Y. CPLR 5015(a) (vacating a judgment for newly discovered evidence or fraud)
• Fed. R. Civ. P. 59, 60 (relief from a judgment)

Cases:

• Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944), fraud on the court

Other opinions cited:

• NYSBA Ethics Op. 831 (2009) and Op. 837 (2010): Rule 3.3 duty continues only while remedial measures remain available

See also

• NYC Bar Ethics Op. 2018-2: Prosecutor's post-conviction duties on potential wrongful conviction
• NYC Bar Ethics Op. 2019-1: Defining an ex parte proceeding under Rule 3.3(d)
• ABA Formal Op. 98-412: Disclosure when a client violates a court order

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2013-2-lawyers-obligation-to-take-action-if-after-the-conclusion-of-a-proceeding-the-lawyer-comes-to-know-that-material-evidence-offered-by-the-lawyer-the/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20072508-Formal_Opinion_2013-02_Obligation_in_Revealing_the_Truth_on_Invalid_Evidence.pdf