When a lawyer learns that the client gave false material evidence to a tribunal, must the lawyer disclose it, even over confidentiality, and must the lawyer withdraw?
NY State Bar Ethics Opinion 837: Confronting a client's false evidence and testimony
Short answer: Under Rule 3.3 a lawyer who comes to know that the client offered false material evidence must take reasonable remedial measures, even if that requires disclosing confidential information, but disclosure to the tribunal is necessary only when no lesser remedial measure will cure the falsehood; withdrawal by itself is not enough.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The inquiring lawyer's client gave sworn testimony in an arbitration about a document, which was admitted into evidence; the client later told the lawyer the document was forged and some testimony about it was false. The lawyer asks whether he must tell the tribunal it is a forgery, what other steps might count as reasonable remedial measures, and whether he must withdraw.
The opinion frames the answer around the change from the former Code to Rule 3.3. Under former DR 7-102(B)(1), a lawyer who received information clearly establishing that the client had committed a fraud on a tribunal had to reveal it, "except when the information is protected as a confidence or secret," an exception the opinion (quoting Professor Roy Simon) describes as having swallowed the rule. Rule 3.3(a)(3) now provides that when the lawyer comes to know that material evidence the lawyer or the client offered is false, the lawyer "shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal," and Rule 3.3(c) makes those duties apply "even if compliance requires disclosure of information otherwise protected by Rule 1.6." The trigger shifted to the lawyer's actual knowledge (Rule 1.0(k), which may be inferred from circumstances), and Rule 3.3(a)(3) reaches even innocently offered false evidence, not only fraud.
The opinion notes limits. CPLR 4503(a)(1), the statutory attorney-client privilege, takes precedence over the court-made Rules, but only as to introducing privileged information into evidence; the Rule 3.3 disclosure duty is satisfied by extra-evidentiary disclosure to the appropriate person, not by testifying against the client. In criminal cases, Rule 3.3 may be qualified by Fifth and Sixth Amendment rights (Comment [7]). On duration, the opinion observes that New York did not adopt the Model Rule 3.3(c) proviso ending the duty at the conclusion of the proceeding, so the obligation may continue afterward, though it cannot extend past the point where remedial measures remain available (N.Y. State 831).
Applying this to the facts, the opinion assumes the evidence was material, so Rule 3.3(a)(3) applies and the lawyer must take reasonable remedial measures regardless of whether the conduct was criminal or fraudulent. But because the lawyer's knowledge is confidential under Rule 1.6 and fits no Rule 1.6(b) exception, disclosure is permitted only if "necessary"; if any reasonable measure short of disclosure exists, the lawyer must take it. The opinion approves the lawyer's proposed intermediate step: informing the tribunal that the specific evidence and related testimony are being withdrawn, without stating that they are false, analogizing to the narrative-testimony approach approved in People v. Andrades. The lawyer must first remonstrate with the client and seek cooperation (Comment [10]), but the remedial action is mandated by Rule 3.3(a)(3) and is not subject to the client's veto. Because the lawyer can proceed without violating the Rules, withdrawal under Rule 1.16(b)(1) is not required, and would in any event be insufficient because it would not undo the effect of the false evidence.
In practice
Under this opinion, a lawyer who knows the client offered material false evidence must act to remedy it, and the Rule 1.6 duty of confidentiality no longer overrides that obligation as it did under the former Code. The opinion holds that the lawyer should first remonstrate with the client, then use the least harmful effective remedy: disclosure to the tribunal is required only if no lesser measure (such as withdrawing the specific evidence and related testimony without characterizing it as false) will cure the problem. Withdrawing from the representation does not satisfy Rule 3.3 because it would not undo the false evidence.
Common questions
Q: Does a lawyer have to tell the court that a client's evidence was false?
A: Only if necessary. The opinion concludes Rule 3.3 requires reasonable remedial measures and permits disclosure, but because the knowledge is confidential under Rule 1.6, disclosure is required only when no lesser remedial measure will cure the falsehood.
Q: Does confidentiality protect the client the way it did under the old Code?
A: No. The opinion explains that the former DR 7-102(B)(1) exception for confidences and secrets is gone; Rule 3.3(c) makes the remedial duty apply even if compliance requires disclosing information protected by Rule 1.6.
Q: What is a reasonable remedial measure short of disclosure here?
A: The opinion approves informing the tribunal that the specific evidence and related testimony are being withdrawn, without stating they are false, analogizing to the narrative-testimony method approved in People v. Andrades.
Q: Must the lawyer withdraw from the representation?
A: No. The opinion concludes withdrawal under Rule 1.16(b)(1) is not required because the lawyer can proceed without violating the Rules, and withdrawal would be insufficient because it would not undo the false evidence.
Background and rules framework
The opinion interprets New York Rule 3.3 (Model Rule 3.3, candor toward the tribunal), particularly Rule 3.3(a)(3) (remedying false material evidence) and Rule 3.3(c) (duties apply even over Rule 1.6 confidentiality). It reads these against Rule 1.6 (Model Rule 1.6, confidentiality), the knowledge standard in Rule 1.0(k), withdrawal under Rule 1.16(b)(1) (Model Rule 1.16), and the statutory attorney-client privilege in CPLR 4503(a). The opinion contrasts the current Rules with the former DR 7-102(B)(1).
Citations and references
Rules of Professional Conduct:
- MR 3.3 (candor toward the tribunal); MR 1.6 (confidentiality); MR 1.16 (declining or terminating representation)
- NY Rules 3.3(a)(3), 3.3(b), 3.3(c); 1.6; 1.0(k); 1.16(b)(1)
- Former DR 7-102(B); DR 4-101
Statutes:
- CPLR 4503(a)(1) (statutory attorney-client privilege)
Cases:
- People v. Andrades, 4 N.Y.3d 355 (2005); People v. DePallo, 96 N.Y.2d 437 (2001); Nix v. Whiteside, 475 U.S. 157 (1986), on counsel and client perjury
Other opinions cited:
- N.Y. State 831 (2009): endpoint of the duty to take remedial measures
See also
- NY State Bar Op. 866: Disclosure of confidential information to prevent harm
- NY State Bar Op. 854: Reporting a known or suspected violation of the Rules
- NY State Bar Op. 838: Whether an administrative rule-making proceeding is before a "tribunal"
Source
- Landing page: https://nysba.org/ethics-opinion-837/