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Rule 3.3 Candor Toward the Tribunal*
(Rule Approved by the Supreme Court, Effective November 1, 2018)
(a) A lawyer shall not:
(1) knowingly* make a false statement of fact or law to a tribunal* or fail to
correct a false statement of material fact or law previously made to the
tribunal* by the lawyer;
(2) 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, or knowingly* misquote to a tribunal* the
language of a book, statute, decision or other authority; or
(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s
client, or a witness called by the lawyer, has 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,*
unless disclosure is prohibited by Business and Professions Code section
6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes* is false.
(b) A lawyer who represents a client in a proceeding before a tribunal* and who
knows* that a person* intends to engage, is engaging or has engaged in criminal
or fraudulent* conduct related to the proceeding shall take reasonable* remedial
measures to the extent permitted by Business and Professions Code section 6068,
subdivision (e) and rule 1.6.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding.
(d) In an ex parte proceeding where notice to the opposing party in the proceeding is
not required or given and the opposing party is not present, a lawyer shall inform
the tribunal* of all material facts known* to the lawyer that will enable the tribunal*
to make an informed decision, whether or not the facts are adverse to the position
of the client.
Comment
[1] This rule governs the conduct of a lawyer in proceedings of a tribunal,* including
ancillary proceedings such as a deposition conducted pursuant to a tribunal’s* authority.
See rule 1.0.1(m) for the definition of “tribunal.”
[2] The prohibition in paragraph (a)(1) against making false statements of law or
failing to correct a material misstatement of law includes citing as authority a decision that
has been overruled or a statute that has been repealed or declared unconstitutional, or
failing to correct such a citation previously made to the tribunal* by the lawyer.
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Legal Argument
[3] Legal authority in the controlling jurisdiction may include legal authority outside the
jurisdiction in which the tribunal* sits, such as a federal statute or case that is
determinative of an issue in a state court proceeding or a Supreme Court decision that is
binding on a lower court.
[4] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense
counsel in criminal cases. If a lawyer knows* that a client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should seek to persuade the
client that the evidence should not be offered and, if unsuccessful, must refuse to offer
the false evidence. If a criminal defendant insists on testifying, and the lawyer knows*
that the testimony will be false, the lawyer may offer the testimony in a narrative form if
the lawyer made reasonable* efforts to dissuade the client from the unlawful course of
conduct and the lawyer has sought permission from the court to withdraw as required by
rule 1.16. (See, e.g., People v. Johnson (1998) 62 Cal.App.4th 608 [72 Cal.Rptr.2d 805];
People v. Jennings (1999) 70 Cal.App.4th 899 [83 Cal.Rptr.2d 33].) The obligations of a
lawyer under these rules and the State Bar Act are subordinate to applicable
constitutional provisions.
Remedial Measures
[5] Reasonable* remedial measures under paragraphs (a)(3) and (b) refer to
measures that are available under these rules and the State Bar Act, and which a
reasonable* lawyer would consider appropriate under the circumstances to comply with
the lawyer’s duty of candor to the tribunal.* (See, e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), 8.4;
Bus. & Prof. Code, §§ 6068, subd. (d), 6128.) Remedial measures also include
explaining to the client the lawyer’s obligations under this rule and, where applicable, the
reasons for the lawyer’s decision to seek permission from the tribunal* to withdraw, and
remonstrating further with the client to take corrective action that would eliminate the need
for the lawyer to withdraw. If the client is an organization, the lawyer should also consider
the provisions of rule 1.13. Remedial measures do not include disclosure of client
confidential information, which the lawyer is required to protect under Business and
Professions Code section 6068, subdivision (e) and rule 1.6.
Duration of Obligation
[6] 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. A
prosecutor may have obligations that go beyond the scope of this rule. (See, e.g., rule 3.8(f)
and (g).)
Ex Parte Communications
[7] Paragraph (d) does not apply to ex parte communications that are not otherwise
prohibited by law or the tribunal.*
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Withdrawal
[8] A lawyer’s compliance with the duty of candor imposed by this rule does not
require that the lawyer withdraw from the representation. The lawyer may, however, be
required by rule 1.16 to seek permission of the tribunal* to withdraw if the lawyer’s
compliance with this rule results in a deterioration of the lawyer-client relationship such
that the lawyer can no longer competently and diligently represent the client, or where
continued employment will result in a violation of these rules. A lawyer must comply with
Business and Professions Code section 6068, subdivision (e) and rule 1.6 with respect to
a request to withdraw that is premised on a client’s misconduct.
[9] In addition to this rule, lawyers remain bound by Business and Professions Code
sections 6068, subdivision (d) and 6106.
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NEW RULE OF PROFESSIONAL CONDUCT 3.3
(Former Rule 5-200)
Candor Toward The Tribunal
EXECUTIVE SUMMARY
The Commission for the Revision of the Rules of Professional Conduct (“Commission”)
evaluated current rule 5-200 (Trial Conduct) in accordance with the Commission Charter. In
addition, the Commission considered the national standard of ABA Model Rule 3.3 (Candor
Toward The Tribunal). The Commission also reviewed relevant California statutes, rules, and
case law relating to the issues addressed by the proposed rules. The result of the
Commission’s evaluation is proposed rule 3.3 (Candor Toward The Tribunal).
Rule As Issued For 90-day Public Comment
Proposed Rule 3.3 in context within the Rules of Professional Conduct. Proposed rule
3.3 is one of ten rules in Chapter 3 of the proposed Rules of Professional Conduct. The
content, framework and numbering scheme of this subset of the rules is generally based on
Chapter 3 of the ABA Model Rules, which is entitled “Advocate.” Model Rules Chapter 3
corresponds to Chapter 5 of the current California rules, entitled “Advocacy and
Representation.” The following table shows the Chapter 3 Model Rules and the
corresponding California rules:
Model Rule
California Rule
3.1 (Meritorious Claims & Contentions)
3-200 (Prohibited Objectives of Employment)
3.2 (Expediting Litigation)
No Cal. rule counterpart.
3.3 (Candor Toward The Tribunal)
5-200 (Trial Conduct)
3.4 (Fairness to Opposing Party & Counsel)
5-220 (Suppression of Evidence)
5-310 (Prohibited Contact with Witnesses)
5-200(E)
3.5 (Impartiality and Decorum of Tribunal)
5-300 (Contact with Officials)
5-320 (Contact with Jurors)
3.6 (Trial Publicity)
5-120 (Trial Publicity)
3.7 (Lawyer As Witness)
5-210 (Member As Witness)
3.8 (Special Responsibilities of a Prosecutor)
5-110 (Performing the Duty of Member in
Government Service)
5-220 (Suppression of Evidence)
5-120 (Trial Publicity)
3.9 (Advocate In Non-adjudicative Proceedings)
No Cal. Rule counterpart.
3.10 (Threatening Criminal, Administrative, or
Disciplinary Charges)
5-100 (Threatening Criminal, Administrative, or
Disciplinary Charges)
The Commission is recommending the adoption of the Model Rule framework and
numbering for this series of rules, but for many of the rules recommends retaining the
language of the California rules, which is more specific and precise, and accordingly more
appropriate for a set of disciplinary rules. However, in the case of proposed rule 3.3, the
Commission determined that a rule patterned on Model Rule 3.3 would be more appropriate
as a disciplinary rule.
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Proposed Rule 3.3. Proposed rule 3.3 is based on Model Rule 3.3, a version of which has
been adopted in every jurisdiction in the country. (See National Backdrop – Adoption of Model
Rule 3.3, below.) The Commission believes that the Model Rule approach regarding a lawyer’s
duty of candor is superior to the approach of current rule 5-200 (Trial Conduct) because it more
clearly identifies the kind of conduct that the rule is intended to regulate, an attribute preferable
in a disciplinary rule. For example, current rule 5-200(A) and (B) are nearly verbatim
transcriptions of the two clauses of Bus. & Prof. Code § 6068(d), a provision that has remained
virtually unchanged since the California Legislature adopted the Field Code in 1872.
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Paragraph
(A) cautions a lawyer to “employ, for the purpose of maintaining the causes confided to the
lawyer, such means only as are consistent with the truth,” but provides no insight into what
“such means” are consistent with the truth, and thus what “means” are not. Similarly, paragraph
(B) prohibits a lawyer from “seeking to mislead the judge . . . by an artifice,” but does not clarify
what a prohibited “artifice” might be.
In sum, the Model Rule approach, under which specific prohibited conduct is identified, is
preferable in a disciplinary rule. The greater detail of the proposed rule should enhance
compliance by lawyers in performing the duties they owe the court as officers of the legal system,
as well as facilitate enforcement. The need for increased detail in the rule is particularly evident
regarding measures a lawyer is permitted to take to correct fraudulent or criminal conduct of
another in relation to a proceeding before a tribunal. That is because, contrary to Model Rule
jurisdictions under which duties under their versions of rule 3.3 trump a lawyer’s duty of
confidentiality, the text of proposed rule 3.3 expressly states that the lawyer’s duty to take
reasonable remedial measures is subordinate to California’s strict duty of confidentiality under
rule 1.6 and Bus. & Prof. Code § 6068(e).
Text of Rule 3.3. The proposed rule’s language, based on the Model Rule, provides a clearer
statement of what conduct is required and prohibited under the rule.
Paragraph (a)’s introductory clause incorporates a “knowledge” standard. The requirement of
known falsity is important from a practical as well as a policy standpoint. A rule that could be
violated by gross negligence would have an improper chilling effect on advocacy and could
render the lawyer a guarantor of the truth of the facts presented.
Subparagraph (a)(1) [based on Model Rule 3.3(a)(1)] provides that a lawyer shall not knowingly
“make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.” A lawyer is on notice that the lawyer
may not knowingly make any false statement of fact or law or fail to correct a material false
statement of fact or law.
Subparagraph (a)(2) [derived from Model Rule 3.3(a)(2)], prohibits a lawyer from failing “to
disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse” to the client’s position. It states the lawyer’s duty to disclose to the tribunal
adverse legal authority in the controlling jurisdiction, which is preferable to the narrowly defined
duties in current rule 5-200(C) and (D). Nevertheless, to further clarify the provision’s intent, the
Commission recommends adding language from rule 5-200(C), which provides a lawyer shall not
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Bus. & Prof. Code § 6068(d) provides it is the duty of an attorney:
(d) To employ, for the purpose of maintaining the causes confided to him or her those means only
as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an
artifice or false statement of fact or law.
The only change since 1872 has been to render the provision gender neutral.
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“misquote to a tribunal the language of a book, statute, decision or other authority.”
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The
Commission determined that a generalized statement of what is prohibited together with a specific
example, is better than a narrowly-defined statement of prohibited conduct.
Subparagraph (a)(3) [based on Model Rule 3.3(a)(3)], states with precision what conduct is
prohibited – offering false evidence – and then identifies steps the lawyer must take to
remediate harm to the tribunal should the lawyer subsequently learn that of the evidence’s
falsity.”
Paragraph (b) confronts head-on a lawyer’s duty when the lawyer knows that a person has
engaged in criminal or fraudulent conduct related to a proceeding. Unlike Model Rule
jurisdictions, however, the provision is limited by the lawyer’s confidentiality duties under rule
1.6 and Bus. & Prof. Code § 6068(e).
Paragraph (c) importantly delimits the duration of the lawyer’s duties under the preceding three
paragraphs. As initially circulated for 90-day public comment, paragraph (c) provided that a
lawyer’s duties continue to the end of the proceeding and do not terminate upon discharge by
the client or the lawyer’s withdrawal. (See Revisions Following 90-Day Public Comment Period,
below.)
Paragraph (d) proscribes appropriate conduct when a lawyer is appearing in an ex parte
proceeding where the other side is not given notice or an opportunity to be heard.
As initially circulated for 90-day public comment, there were seven comments to the
proposed rule, each of which provided interpretative guidance or clarified how the proposed
rule, which is intended to govern a broad array of situations, should be applied.
Comment [1] describes the scope of the rule’s application, i.e., that it also applies to
ancillary proceedings such as depositions, a concept that might not be apparent in a rule
addressing conduct before a “tribunal.”
Comment [2], as noted (see footnote 2), has been included to address concerns the Office of
Chief Trial Counsel expressed in its 2010 Comment about the deletion of the language in
current rule 5-200(C) [now incorporated into subparagraph (a)(2)] and (D). The comment
incorporates nearly verbatim the language in current rule 5-200(D).
Comment [3], regarding the term “legal authority in the controlling jurisdiction,” provides critical
interpretative guidance for the term, which in some instances can encompass legal authority
outside of the jurisdiction in which a court is physically located. The comment is not strictly a
definition but instead explains how a strict interpretation of the term “controlling jurisdiction,” i.e.,
to mean the politically-defined jurisdiction in which the court is located, would be inaccurate.
Comment [4] provides a suggested course of conduct for a lawyer to preserve the integrity of
the legal process by identifying preventive measures a lawyer might take to prevent another
from engaging in fraudulent or criminal conduct related to a tribunal proceeding. It also notes
that under paragraphs (a) and (b), if the lawyer is unsuccessful in averting the conduct, the
lawyer must refuse to offer the false evidence. In addition, the comment identifies the narrative
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In response to a request by the Office of Chief Trial Counsel, the Commission is also recommending
that the substance of 5-200(D) (a lawyer “shall not, knowing its invalidity, cite as authority a decision that
has been overruled or a statute that has been repealed or declared unconstitutional”) be retained in a
comment to clarify the application of paragraph (a)(1). (See Comment [2].)
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approach, a procedure sanctioned in California case law that is cited, when the person who
intends to testify falsely is the lawyer’s criminal defendant client.
Comment [5] provides important guidance for a lawyer who seeks to perform the lawyer’s duties
to engage in “reasonable remedial measures” as required under paragraph (b) when a fraud has
been perpetrated on the court. In particular, the comment provides cross-references to rules and
statutes that provide further guidance.
Comment [6] provides interpretative guidance on when a proceeding is deemed to have
concluded and the lawyer’s duties under the rule are terminated. In particular, it recognizes that
the duties under paragraph (b) to rectify fraudulent conduct before a tribunal do not apply when
the lawyer learns of the fraudulent or criminal course of conduct only after the lawyer’s
representation has terminated.
Comment [7], regarding a lawyer’s withdrawal from representation occasioned by events
contemplated by the rule’s provisions, provides important guidance that when a lawyer
complies with the lawyer’s duties under the rule, the lawyer does not necessarily need to
withdraw. However, the comment also notes that withdrawal may be mandatory when, as a
consequence of the lawyer’s compliance, the lawyer-client relationship deteriorates to the extent
the lawyer can no longer competently represent the client or continued representation will result
in a violation of the rules.
In addition to the recommended provisions, the Commission declined to recommend a
provision suggested in public comment that would expressly bar plagiarism in briefs or other
submissions to a court. The Commission determined a specific prohibition on plagiarism is not
necessary and not appropriate in a disciplinary rule. In any event, such conduct would be better
addressed under proposed rule 8.4(c) or Bus. & Prof. Code § 6106.
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Moreover, there is no
evidence that adopting such a provision would promote a national standard as the Commission
is unaware of any jurisdiction that has expressly addressed plagiarism in its rules.
National Background – Adoption of Model Rule 3.3
Every jurisdiction except California has adopted some version of Model Rule 3.3. Twenty-one
jurisdictions have adopted Model Rule 3.3 verbatim. Sixteen jurisdictions have adopted a
slightly modified version of Model Rule 3.3. Thirteen jurisdictions have adopted a version of the
rule that is substantially different from Model Rule 3.3.
Revisions Following 90-Day Public Comment Period
After consideration of comments received in response to the initial 90-day public comment
period, the Commission revised paragraphs (a) and (d) for clarity. Paragraph (c) was
substantively revised to provide that the duration of a lawyer’s duty under paragraphs (a)
and (b) would continue until the conclusion of the representation or the proceeding,
whichever comes first. Two new Comments were added, bringing the total number of
Comments in the rule to nine. Comment [7] was added to clarify that paragraph (d) does not
apply to ex parte communications otherwise not prohibited by law or by the tribunal.
Comment [9] was added to make clear that in addition to this rule, lawyers are remain bound
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Proposed rule 8.4 (c) provides it is professional misconduct for a lawyer to:
(c) engage in conduct involving moral turpitude, dishonesty, fraud, deceit or reckless or
intentional misrepresentation
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by their statutory obligations to never mislead a judge or judicial officer, nor commit an act of
moral turpitude, dishonesty or corruption.
With these changes, the Board authorized an additional 45-day public comment period on
the revised proposed rule.
Final Commission Action on the Proposed Rule Following 45-Day Public Comment
Period
After consideration of comments received in response to the additional 45-day public
comment period, the Commission made no changes to the proposed rule and voted to
recommend that the Board adopt the proposed rule. Members of the Commission submitted
dissents to this rule that can be found following the Report and Recommendation.
The Board adopted proposed rule 3.3 at its March 9, 2017 meeting.
Supreme Court Action (May 10, 2018)
The Supreme Court approved the rule as modified by the Court to be effective November 1,
2018. At the end of paragraph (c), the phrase “or the representation, whichever comes first”
was deleted.
In Comment [6], the second sentence was deleted in its entirety. Also in Comment [6], the
third sentence was revised as follows: “However, there may be A prosecutor may have
obligations that go beyond the scope of this rule. In addition, the parenthetical cross
reference to rule 3.8 was revised to refer to paragraphs (f) and (g) of that rule.
For Comment [7], the heading “Ex Parte Communications” was added.
Other nonsubstantive changes were implemented, including changes to conform to the
California Style Manual. (See, e.g., Comment [5] and the rule title.) Lastly, omitted asterisks for
defined terms were added.
Supreme Court Action (September 26, 2018)
Subsequently, the Board adopted staff recommended “clean-up” revisions to various rules,
including this rule. All of these changes were non-substantive and, for example,
implemented copy editing corrections to style and punctuation. The Supreme Court
approved the “clean-up” revisions operative November 1, 2018 by order dated September
26, 2018.
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Rule 5-200 Trial Conduct
Rule 3.3 Candor Toward the Tribunal*
(Redline Comparison to the California Rule Operative Until October 31, 2018)
(a) A lawyer shall not:
(1) knowingly* make a false statement of fact or law to a tribunal* or fail to
correct a false statement of material fact or law previously made to the
tribunal* by the lawyer;
(2) 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, or knowingly* misquote to a tribunal* the
language of a book, statute, decision or other authority; or
(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s
client, or a witness called by the lawyer, has 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,*
unless disclosure is prohibited by Business and Professions Code section
6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes* is false.
(b) A lawyer who represents a client in a proceeding before a tribunal* and who
knows* that a person* intends to engage, is engaging or has engaged in criminal
or fraudulent* conduct related to the proceeding shall take reasonable* remedial
measures to the extent permitted by Business and Professions Code section 6068,
subdivision (e) and rule 1.6.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding.
(d) In an ex parte proceeding where notice to the opposing party in the proceeding is
not required or given and the opposing party is not present, a lawyer shall inform
the tribunal* of all material facts known* to the lawyer that will enable the tribunal*
to make an informed decision, whether or not the facts are adverse to the position
of the client.
In presenting a matter to a tribunal, a member:
(A) Shall employ, for the purpose of maintaining the causes confided to the
member such means only as are consistent with truth;
(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or
false statement of fact or law;
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(C) Shall not intentionally misquote to a tribunal the language of a book, statute,
or decision;
Comment
[1] This rule governs the conduct of a lawyer in proceedings of a tribunal,* including
ancillary proceedings such as a deposition conducted pursuant to a tribunal’s* authority.
See rule 1.0.1(m) for the definition of “tribunal.”
(D) Shall not, knowing its invalidity, cite[2] The prohibition in paragraph (a)(1)
against making false statements of law or failing to correct a material misstatement of law
includes citing as authority a decision that has been overruled or a statute that has been
repealed or declared unconstitutional; and, or failing to correct such a citation previously
made to the tribunal* by the lawyer.
(E) Shall not assert personal knowledge of the facts at issue, except when
testifying as a witness
Legal Argument
[3] Legal authority in the controlling jurisdiction may include legal authority outside the
jurisdiction in which the tribunal* sits, such as a federal statute or case that is
determinative of an issue in a state court proceeding or a Supreme Court decision that is
binding on a lower court.
[4] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense
counsel in criminal cases. If a lawyer knows* that a client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should seek to persuade the
client that the evidence should not be offered and, if unsuccessful, must refuse to offer
the false evidence. If a criminal defendant insists on testifying, and the lawyer knows*
that the testimony will be false, the lawyer may offer the testimony in a narrative form if
the lawyer made reasonable* efforts to dissuade the client from the unlawful course of
conduct and the lawyer has sought permission from the court to withdraw as required by
rule 1.16. (See, e.g., People v. Johnson (1998) 62 Cal.App.4th 608 [72 Cal.Rptr.2d 805];
People v. Jennings (1999) 70 Cal.App.4th 899 [83 Cal.Rptr.2d 33].) The obligations of a
lawyer under these rules and the State Bar Act are subordinate to applicable
constitutional provisions.
Remedial Measures
[5] Reasonable* remedial measures under paragraphs (a)(3) and (b) refer to
measures that are available under these rules and the State Bar Act, and which a
reasonable* lawyer would consider appropriate under the circumstances to comply with
the lawyer’s duty of candor to the tribunal.* (See, e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), 8.4;
Bus. & Prof. Code, §§ 6068, subd. (d), 6128.) Remedial measures also include
explaining to the client the lawyer’s obligations under this rule and, where applicable, the
reasons for the lawyer’s decision to seek permission from the tribunal* to withdraw, and
remonstrating further with the client to take corrective action that would eliminate the need
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for the lawyer to withdraw. If the client is an organization, the lawyer should also consider
the provisions of rule 1.13. Remedial measures do not include disclosure of client
confidential information, which the lawyer is required to protect under Business and
Professions Code section 6068, subdivision (e) and rule 1.6.
Duration of Obligation
[6] 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. A
prosecutor may have obligations that go beyond the scope of this rule. (See, e.g., rule 3.8(f)
and (g).)
Ex Parte Communications
[7] Paragraph (d) does not apply to ex parte communications that are not otherwise
prohibited by law or the tribunal.*
Withdrawal
[8] A lawyer’s compliance with the duty of candor imposed by this rule does not
require that the lawyer withdraw from the representation. The lawyer may, however, be
required by rule 1.16 to seek permission of the tribunal* to withdraw if the lawyer’s
compliance with this rule results in a deterioration of the lawyer-client relationship such
that the lawyer can no longer competently and diligently represent the client, or where
continued employment will result in a violation of these rules. A lawyer must comply with
Business and Professions Code section 6068, subdivision (e) and rule 1.6 with respect to
a request to withdraw that is premised on a client’s misconduct.
[9] In addition to this rule, lawyers remain bound by Business and Professions Code
sections 6068, subdivision (d) and 6106.
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Rule 3.3 Candor Toward the Tribunal*
(Redline Comparison to the ABA Model Rule)
(a) A lawyer shall not knowingly:
(1) knowingly* make a false statement of fact or law to a tribunal* or fail to
correct a false statement of material fact or law previously made to the
tribunal* by the lawyer;
(2) 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, or knowingly* misquote to a tribunal* the
language of a book, statute, decision or other authority; or
(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s
client, or a witness called by the lawyer, has 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,*
unless disclosure is prohibited by Business and Professions Code section
6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes* is false.
(b) A lawyer who represents a client in an adjudicativea proceeding before a tribunal*
and who knows* that a person* intends to engage, is engaging or has engaged in
criminal or fraudulent* conduct related to the proceeding shall take reasonable*
remedial measures, including, if necessary, disclosure to the tribunal to the extent
permitted by Business and Professions Code section 6068, subdivision (e) and
rule 1.6.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the
proceeding, and apply even if compliance requires disclosure of information
otherwise protected by Rule 1.6.
(d) In an ex parte proceeding where notice to the opposing party in the proceeding is
not required or given and the opposing party is not present, a lawyer shall inform
the tribunal* of all material facts known* to the lawyer that will enable the tribunal*
to make an informed decision, whether or not the facts are adverse to the position
of the client.
Comment
[1] This Rulerule governs the conduct of a lawyer who is representing a client in thein
proceedings of a tribunal,* including ancillary proceedings such as a deposition
conducted pursuant to a tribunal’s* authority. See Rule 1.0rule 1.0.1(m) for the definition
of “tribunal.” It also applies when the lawyer is representing a client in an ancillary
proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a
deposition. Thus, for example, paragraph (a)(3) requires a lawyer to take reasonable
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remedial measures if the lawyer comes to know that a client who is testifying in a
deposition has offered evidence that is false.
[2] This Rule sets forth the special duties of lawyers as officers of the court to avoid
conduct that undermines the integrity of the adjudicative process. A lawyer acting as an
advocate in an adjudicative proceeding has an obligation to present the client’s case with
persuasive force. Performance of that duty while maintaining confidences of the client,
however, is qualified by the advocate’s duty of candor to the tribunal. Consequently,
although a lawyer in an adversary proceeding is not required to present an impartial
exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not
allow the tribunal to be misled by false statements of law or fact or evidence thatThe
prohibition in paragraph (a)(1) against making false statements of law or failing to correct
a material misstatement of law includes citing as authority a decision that has been
overruled or a statute that has been repealed or declared unconstitutional, or failing to
correct such a citation previously made to the tribunal* by the lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is responsible for pleadings and other documents prepared for
litigation, but is usually not required to have personal knowledge of matters asserted
therein, for litigation documents ordinarily present assertions by the client, or by
someone on the client’s behalf, and not assertions by the lawyer. Compare Rule 3.1.
However, an assertion purporting to be on the lawyer’s own knowledge, as in an
affidavit by the lawyer or in a statement in open court, may properly be made only when
the lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure to make a disclosure
is the equivalent of an affirmative misrepresentation. The obligation prescribed in Rule
1.2(d) not to counsel a client to commit or assist the client in committing a fraud applies
in litigation. Regarding compliance with Rule 1.2(d), see the Comment to that Rule. See
also the Comment to Rule 8.4(b).
Legal Argument
[43] Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose directly
adverse authority in the controlling jurisdiction that has not been disclosed by the
opposing party. The underlying concept is that legal argument is a discussion seeking to
determine the legal premises properly applicable to the case.may include legal authority
outside the jurisdiction in which the tribunal* sits, such as a federal statute or case that is
determinative of an issue in a state court proceeding or a Supreme Court decision that is
binding on a lower court.
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Offering Evidence
[5] 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. A lawyer does not violate this Rule if the lawyer offers the evidence
for the purpose of establishing its falsity.
[64] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense
counsel in criminal cases. If a lawyer knows* that thea client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should seek to persuade the
client that the evidence should not be offered. If the persuasion is ineffective and the
lawyer continues to represent the client, the lawyer and, if unsuccessful, must refuse to
offer the false evidence. If only a portion of a witness’sa criminal defendant insists on
testifying, and the lawyer knows* that the 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.offer the testimony in a narrative form if the
lawyer made reasonable* efforts to dissuade the client from the unlawful course of
conduct and the lawyer has sought permission from the court to withdraw as required by
rule 1.16. (See, e.g., People v. Johnson (1998) 62 Cal.App.4th 608 [72 Cal.Rptr.2d 805];
People v. Jennings (1999) 70 Cal.App.4th 899 [83 Cal.Rptr.2d 33].) The obligations of a
lawyer under these rules and the State Bar Act are subordinate to applicable
constitutional provisions.
[7] The duties stated in paragraphs (a) and (b) apply to all lawyers, including
defense counsel in criminal cases. In some jurisdictions, however, courts have required
counsel to present the accused as a witness or to give a narrative statement if the
accused so desires, even if counsel knows that the testimony or statement will be false.
The obligation of the advocate under the Rules of Professional Conduct is subordinate
to such requirements. See also Comment [9].
[8] 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.
[9] Although paragraph (a)(3) only prohibits a lawyer from offering evidence the
lawyer knows to be false, it permits the lawyer to refuse to offer testimony or other proof
that the lawyer reasonably believes is false. Offering such proof may reflect adversely
on the lawyer’s ability to discriminate in the quality of evidence and thus impair the
lawyer’s effectiveness as an advocate. Because of the special protections historically
provided criminal defendants, however, this Rule does not permit a lawyer to refuse to
offer the testimony of such a client where the lawyer reasonably believes but does not
know that the testimony will be false. Unless the lawyer knows the testimony will be
false, the lawyer must honor the client’s decision to testify. See also Comment [7].
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Remedial Measures
[5] Reasonable* remedial measures under paragraphs (a)(3) and (b) refer to
measures that are available under these rules and the State Bar Act, and which a
reasonable* lawyer would consider appropriate under the circumstances to comply with
the lawyer’s duty of candor to the tribunal.* (See, e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), 8.4;
Bus. & Prof. Code, §§ 6068, subd. (d), 6128.) Remedial measures also include
explaining to the client the lawyer’s obligations under this rule and, where applicable, the
reasons for the lawyer’s decision to seek permission from the tribunal* to withdraw, and
remonstrating further with the client to take corrective action that would eliminate the need
for the lawyer to withdraw. If the client is an organization, the lawyer should also consider
the provisions of rule 1.13. Remedial measures do not include disclosure of client
confidential information, which the lawyer is required to protect under Business and
Professions Code section 6068, subdivision (e) and rule 1.6.
[10] Having offered material evidence in the belief that it was true, a lawyer may
subsequently come to know that the evidence is false. Or, a lawyer may be surprised
when the lawyer’s client, or another witness called by the lawyer, offers testimony the
lawyer knows to be false, either during the lawyer’s direct examination or in response to
cross-examination by the opposing lawyer. In such situations or if the lawyer knows of
the falsity of testimony elicited from the client during a deposition, the lawyer must take
reasonable remedial measures. 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.
[11] The disclosure of a client’s false testimony can result in grave consequences to
the client, including not only a sense of betrayal but also loss of the case and perhaps a
prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the
court, thereby subverting the truth-finding process which the adversary system is
designed to implement. See Rule 1.2(d). Furthermore, unless it is clearly understood
that the lawyer will act upon the duty to disclose the existence of false evidence, the
client can simply reject the lawyer’s advice to reveal the false evidence and insist that
the lawyer keep silent. Thus the client could in effect coerce the lawyer into being a
party to fraud on the court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a special obligation to protect a tribunal against criminal or
fraudulent conduct that undermines the integrity of the adjudicative process, such as
bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court
5
official or other participant in the proceeding, unlawfully destroying or concealing
documents or other evidence or failing to disclose information to the tribunal when
required by law to do so. Thus, paragraph (b) requires a lawyer to take reasonable
remedial measures, including disclosure if necessary, whenever the lawyer knows that
a person, including the lawyer’s client, intends to engage, is engaging or has engaged
in criminal or fraudulent conduct related to the proceeding.
Duration of Obligation
[136] 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 Rulerule when a final judgment in the proceeding has been affirmed on
appeal or the time for review has passed. A prosecutor may have obligations that go
beyond the scope of this rule. (See, e.g., rule 3.8(f) and (g).)
Ex Parte ProceedingsCommunications
[7] Paragraph (d) does not apply to ex parte communications that are not otherwise
prohibited by law or the tribunal.*
[14] Ordinarily, an advocate has the limited responsibility of presenting one side of the
matters that a tribunal should consider in reaching a decision; the conflicting position is
expected to be presented by the opposing party. However, in any ex parte proceeding,
such as an application for a temporary restraining order, there is no balance of
presentation by opposing advocates. The object of an ex parte proceeding is
nevertheless to yield a substantially just result. The judge has an affirmative
responsibility to accord the absent party just consideration. The lawyer for the
represented party has the correlative duty to make disclosures of material facts known
to the lawyer and that the lawyer reasonably believes are necessary to an informed
decision.
Withdrawal
[8] A lawyer’s compliance with the duty of candor imposed by this rule does not
require that the lawyer withdraw from the representation. The lawyer may, however, be
required by rule 1.16 to seek permission of the tribunal* to withdraw if the lawyer’s
compliance with this rule results in a deterioration of the lawyer-client relationship such
that the lawyer can no longer competently and diligently represent the client, or where
continued employment will result in a violation of these rules. A lawyer must comply with
Business and Professions Code section 6068, subdivision (e) and rule 1.6 with respect to
a request to withdraw that is premised on a client’s misconduct.
[9] In addition to this rule, lawyers remain bound by Business and Professions Code
sections 6068, subdivision (d) and 6106.
[15] Normally, a lawyer’s compliance with the duty of candor imposed by this Rule
does not require that the lawyer withdraw from the representation of a client whose
6
interests will be or have been adversely affected by the lawyer’s disclosure. The lawyer
may, however, be required by Rule 1.16(a) to seek permission of the tribunal to
withdraw if the lawyer’s compliance with this Rule’s duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the lawyer can no longer
competently represent the client. Also see Rule 1.16(b) for the circumstances in which a
lawyer will be permitted to seek a tribunal’s permission to withdraw. In connection with a
request for permission to withdraw that is premised on a client’s misconduct, a lawyer
may reveal information relating to the representation only to the extent reasonably
necessary to comply with this Rule or as otherwise permitted by Rule 1.6.
