Rule 3.3—Candor Toward the Tribunal
I. OVERVIEW
A. "Candor Toward the Tribunal"—Also Honesty
Rule 3.3, "Candor Toward the Tribunal," deals with lawyers' duties of candor—disclosing facts and authorities to the tribunal. However, most of Rule 3.3 deals with subjects—false evidence, false statements, fraud on the tribunal—that also involve honesty, by lawyers and by others involved in litigation. Rule 3.3 might more accurately be titled "Honesty and Candor Toward the Tribunal."
B. Confidentiality Trumped
The heavy-duty nature of Rule 3.3 is clear from Rule 3.3(c)—the duties to disclose, or otherwise remediate, false statements and fraudulent or criminal conduct, trump lawyers' confidentiality duties to clients. Because confidentiality is a fundamental ethical duty, the tension between Rule 3.3 and Rule 1.6 is acute. Craig D. Klausing, Correcting the Record under Rule 3.3, MINN. LAW., Dec. 13, 2010, at #. After all, "[t]he 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." Rule 3.3 cmt. 11.
Nonetheless, Rule 3.3's basic requirement is straightforward and Rule 3.3 violations may be treated sternly. A lawyer was suspended for thirty days because he learned his client had made a false statement to a tribunal, but failed to correct it. In re Sannes, 832 N.W.2d 446 (Minn. 2013).
C. Still Stronger Rule 3.3
The 2005 amendments to Rule 3.3 made an already-tough rule still stronger. "Rule 3.3(a)(1) now requires lawyers to correct their own material misstatements of law or fact. Rule 3.3(a)(3) provides that a lawyer must correct not only the client's false statements, but also those of a 'witness called by the lawyer,' both on direct and cross-examination. The same rule requires that defense counsel must offer evidence from a criminal defendant that the lawyer reasonably believes (but does not actually know) is false." Kenneth L. Jorgensen & William J. Wernz, New Directions in Professional Conduct: The Devil is in the Details, BENCH & B. OF MINN., Sept. 2005, at 14, 16. See also Patrick R. Burns, Candor to the Tribunal: Changes to Rules 3.3 of the Professional Rules, MINN. LAW., Mar. 6, 2006, at 4.
D. Still Stronger Court Rules
Two cases discussed below show that, by rule, there may be enhanced candor requirements in certain courts. See In re Wentzell, 656 N.W.2d 402 (Minn. 2003) (Bankruptcy Court) and Gagliardi v. Ortho-Midwest, Inc., 773 N.W.2d 171 (Minn. Ct. App. 2007) (Minnesota Appellate Courts). Rule 3.3(d) requires greater candor in ex parte proceedings.
E. Expectations May Exceed Requirements
In the author's experience, courts often have generalized expectations of candor on the part of lawyers that go beyond the delicate balances created by the Rule. Cases reflecting these expectations are cited below. Judicial evaluations of lawyers' candor obligations are also marked by great variety and strong disagreement, as in the lower court opinions related to Nix v. Whiteside, 475 U.S. 157 (1986), discussed below.
F. Requirements Exceed Aspirations
On the other hand, the Professionalism Aspirations, adopted in 2001 by the Minnesota Supreme Court, as standards higher than discipline rules, have been outpaced by Rule 3.3 amendments. The Aspirations state, "We will not knowingly misrepresent, mischaracterize, misquote, or miscite facts or authorities in any oral or written communication to the court or administrative hearing officer." Professionalism Aspirations § IV.A.5. There is no aspiration to correct one's own inadvertent misstatement, nor to correct others' false statements or false evidence. Rule 3.3 creates higher-than-aspirational standards, by requiring some such corrections.
G. Related Rules and Authorities
Rules that relate closely to Rule 3.3 include Rules 1.2(a) and (d), 1.16(a)(1) and (b) (2), 3.4, 3.9, 4.1, and 8.4(c) and (d). Another related rule is Minn. R. Civ. App. P. 128.02, subdiv. 1(c) (2010), requiring that in civil appeals, "[t]he facts must be stated fairly [and] with complete candor." Minn. Stat. § 481.071 (2010) provides that an attorney who engages in deceit in connection with litigation commits a misdemeanor and is liable for treble damages. New lawyers take an oath not to use "falsehood or deceit." Minn. Stat. § 358.07(9) (2010). These standards all enforce a core value for lawyers, "loyalty to the truth without which [one] cannot be a lawyer in the real sense of the word." In re Nilva, 266 Minn. 576, 583, 123 N.W.2d 803, 809 (1963).
H. ABA Opinions and Restatement Relate to Prior Rule 3.3
Minnesota Rule 3.3 is identical to ABA Model Rule 3.3. Before the 2005 expansion of Rule 3.3, the ABA issued several opinions on obligations of candor toward the tribunal. These opinions retain some usefulness, but they should be used with caution, because they interpret former Rule 3.3, before amendments. Similarly, Restatement §§ 111, 112, and 120, is parallel to former Rule 3.3, and so must be applied with caution.
I. Commentary
Rule 3.3 is the subject of considerable commentary, by the Office of Lawyers Professional Responsibility (OLPR) and others. Extensive commentary is justified, because the Rule balances such weighty concerns and because the Rule was amended in 2005.
II. DISCIPLINARY OVERVIEW
A. Suspension or Disbarment Often Imposed
Because duties under Rule 3.3(a)-(c) concern such weighty matters as fraud on the tribunal, violations of this Rule have typically resulted in public discipline, including suspension or disbarment. Numerous suspensions and disbarments have periodically been cited as evidence of, "a growing pattern of lawyer discipline cases involving attorneys lying to courts, opposing counsel and clients, or altering, forging or totally fabricating documents and other evidence." Martin A. Cole, Truth or Consequences, BENCH & B. OF MINN., Dec. 2003, at 12, 12. See also William J. Wernz, Perjury, Forgery and Fabrication, BENCH & B. OF MINN., Oct. 1986, at 13.
However, many Rule 3.3 violations have also resulted in lesser discipline, especially when a false statement to a court is isolated, without other rule violations.
A very thorough analysis and comparison of Rule 3.3 disciplines is found in In re Sea, 932 N.W.2d 28 (Minn. 2019). Sea lied to the court and counsel about his whereabouts, in order to excuse his absence. In re Sea also includes an extensive analysis from a dissenting justice, who would have imposed a 60 day suspension rather than the 120 day suspension imposed by the Court.
B. Lesser Discipline, Especially for Isolated False Statements
In 2014 alone, nine lawyers were disciplined for making false statements to tribunals. In some cases these offenses stood alone, while in others they were accompanied by other offenses. An OLPR article called brief attention to these cases, but the article did not include case names and only four of nine cases were summarized. Cassie Hanson, Lying to a Court Comes With a Price Tag, MINN. LAW., Oct. 2, 2014. The author's February 2015 blog cites and analyzes all nine cases, as well as other cases. https://my.mnbar.org/blogs/william-wernz/2015/02/02/february-2015-disciplines-for-false-statements-to-tribunalsoverview?CommunityKey=06b06e45-74ca-4cf9-ae84-fede75b8e1b5&tab=. This analysis included the following observations and conclusions.
Several cases involved the supreme court initially rejecting a stipulation for discipline without suspension. After briefing, however, the stipulations were accepted.
The court has repeatedly stated that even an isolated false statement to a court will normally result in suspension, but not one of the 2014 cases supports this proposition. Moreover, a survey of the case law reveals that this characterization is inaccurate. Many such cases result in reprimand and probation. Some result in private discipline. The cases cited by the court to support the statement involve offenses in addition to the false statement.
Although the court and OLPR have made commendable efforts to achieve consistency, some lawyers have avoided suspension while others, with comparable or lesser offenses, and comparable or greater mitigation, have been suspended. To illustrate this conclusion, the February 2015 Minnesota Legal Ethics blog compares the reprimands issued in In re Novak, 856 N.W.2d 97 (Minn. 2014) and In re Amundson, A14-1461 (Minn., Oct. 17, 2014) with the suspension imposed in In re Scott, 657 N.W.2d 567 (Minn. 2003). (The author represented Scott.) Scott was suspended, and Novak and Amundson were reprimanded, although Scott's offense and mitigation appear to call for the same, or less, discipline.
Some cases before 2014 also show that suspension for a false statement to a tribunal is far from automatic. In one case, a thirty day suspension, for submitting a document with a forged signature to a government agency, was stayed, due to mitigating circumstances, "The forgery here does not appear to have been motivated by a desire to defraud. It is undisputed that respondent could have obtained the documents by having the decedent's spouse, who was also respondent's client, sign the authorization. Furthermore, the decedent's spouse consented to the forgery. Thus, this case is distinguishable from other forgery cases in which we imposed executed suspensions. See, e.g., In re Holmay, 399 N.W.2d at 565 (client did not consent to forgery of his signature)." In re Meyer, 601 N.W.2d 706, 706-07 (Minn. 1999).
Private disciplines are, in the nature of the case, difficult to identity and discuss. Nonetheless, the blog identified several cases in which private discipline was imposed for a false statement to a court. For example, on June 16, 2003, OLPR issued a private discipline to a lawyer, Kurzman, for violation of Rule 3.3(a)(1). In 2001, to bolster an argument he was making in court, Kurzman stated, "I am a pharmacist. I am admitted to practice in the state of Minnesota and other states." In...
