An employee of my client admitted lying in a deposition. What am I required to do?

Plain-English summary

The inquiring attorney asked what to do in a situation in which an employee of a client has admitted giving false testimony in a deposition.

The panel took the position that Rule 3.3 of the Rhode Island Rules of Professional Conduct and its comment entitled "False Evidence" apply. The attorney should first encourage the client to persuade the employee to come forward to correct the error. If the employee refuses, the attorney then has an obligation to disclose the falsity to the court or to the other party.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions, including the candor rule. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: What should I do first when I learn the testimony was false?

A: Per the opinion, first encourage the client to persuade the employee to come forward and correct the error.

Q: What if the employee will not correct the testimony?

A: Per the opinion, if the employee refuses, the attorney then has an obligation to disclose the falsity to the court or to the other party.

Q: Which rule governs this situation?

A: Per the opinion, Rule 3.3 of the Rhode Island Rules of Professional Conduct and its comment entitled "False Evidence."

Background and rules framework

The opinion applies Rhode Island Rule 3.3 (candor toward the tribunal), corresponding to Model Rule 3.3, and its "False Evidence" comment. Rule 3.3 prohibits a lawyer from offering evidence the lawyer knows to be false and, when a lawyer comes to know that material evidence offered by the lawyer, the client, or a witness has been false, requires reasonable remedial measures, which can include disclosure to the tribunal. The panel structured the remedy as an escalating one: first work through the client to correct the testimony, then disclose if that fails.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal)
• RI RPC 3.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-39: An Attorney Must Disclose an Adverse Change in Criminal Law to the Court
• RI EAP Op. 91-52: A Lawyer May but Need Not Report an Opposing Party's Perjury or Fraud
• RI EAP Op. 97-15: Testifying That a Forged Letter Was Not the Lawyer's

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-76.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-76, Request #257
Issued December 4, 1991

An attorney seeks Panel advice regarding a situation in which an employee of a client has admitted giving false testimony in a deposition.

Rule 3.3 of the Rhode Island Rules of Professional Conduct and its comment entitled "False Evidence" is applicable in this case. The attorney should first encourage the client to persuade the employee to come forward to correct the error, and if the employee refuses, the attorney then has an obligation to disclose the falsity to the court or to the other party.