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likelihood that the tribunal will permit the lawyer to withdraw, the lawyer is also required to inform
the court that the request for permission to withdraw is required by the Rules of Professional
Conduct. This statement also serves to advise the tribunal that something is amiss without
providing the tribunal with any of the information related to the representation that is protected by
Rule 1.6. These Rules, therefore, are intended to preserve confidentiality while requiring the lawyer
to act so as not to assist the client with the consummation of the fraud. This reflects a judgment that
the legal system will be best served by rules that encourage clients to confide in their lawyers who
in turn will advise them to rectify the fraud. Many, if not most, clients will abide by their lawyer’s
advice, particularly if the lawyer spells out the consequences of failing to do so. At the same time,
our legal system and profession cannot permit lawyers to assist clients who refuse to follow their
advice and insist on consummating an ongoing fraud.
[11] Once the lawyer has made a request for permission to withdraw, the tribunal may grant
or deny the request to withdraw without further inquiry or may seek more information from the
lawyers about the reasons for the lawyer’s request. If the judge seeks more information, the lawyer
must resist disclosure of information protected by Rule 1.6, but only to the extent that the lawyer
may do so in compliance with Rule 3.1. If the lawyer cannot make a non-frivolous argument that
the information sought by the tribunal is protected by the attorney-client privilege, the lawyer must
respond truthfully to the inquiry. If, however, there is a non-frivolous argument that the information
sought is privileged, paragraph (h) requires the lawyer to invoke the privilege. Whether to seek an
interlocutory appeal from an adverse decision with respect to the claim of privilege is governed by
Rule 1.2 and 3.1.
[12] If a lawyer is required to seek permission from a tribunal to withdraw from the
representation of a client in either a civil or criminal proceeding because the client has refused to
rectify a perjury or fraud, it is ultimately the responsibility of the tribunal to determine whether the
lawyer will be permitted to withdraw from the representation. In a criminal proceeding, however, a
decision to permit the lawyer's withdrawal may implicate the constitutional rights of the accused and
may even have the effect of precluding further prosecution of the client. Notwithstanding this
possibility, the lawyer must seek permission to withdraw, leaving it to the prosecutor to object to the
request and to the tribunal to ultimately determine whether withdrawal is permitted. If permission to
withdraw is not granted, the lawyer must continue to represent the client but cannot assist the client
in consummating the fraud or perjury by directly or indirectly using the perjured testimony or false
evidence during the current or any subsequent stage of the proceeding. A defense attorney who
complies with these rules is acting professionally without regard to the effect of the lawyer's
compliance on the outcome of the proceeding.
[13] If a lawyer comes to know that tangible items or documents that the lawyer has
previously offered into evidence have been altered or falsified, paragraph (g) requires that the lawyer
withdraw or disaffirm the evidence but does not otherwise permit disclosure of information
protected by Rule 1.6. Because disaffirmance, like withdrawal, can be accomplished without
disclosure of information protected by Rule 1.6, it is required when necessary for the lawyer to
avoid assisting a fraud on the tribunal.
[14] Paragraph (h) applies if the lawyer comes to know that a person other than the client
has engaged in misconduct in connection with the proceeding. Upon learning prior to the
paragraph (e) to promptly reveal the offense to the tribunal. The client’s interest in protecting the
wrongdoer is not sufficiently important as to override the lawyer’s duty of candor to the court and
to take affirmative steps to prevent the administration of justice from being tainted by perjury, fraud
or other improper conduct.
[15]Because jury tampering undermines the institutional mechanism our adversary system
of justice uses to determine the truth or falsity of testimony or evidence, paragraph (i) requires a
lawyer who learns prior to the completion of the proceeding that there has been misconduct by or
directed toward a juror or prospective juror must reveal the misconduct and the identity of the
perpetrator to the tribunal, even if so doing requires disclosure of information protected by Rule
1.6. Paragraph (i) does notrequire that the lawyer seek permission to withdraw from the further
representation of the client in the proceeding, but in cases in which the client is implicated in the
jury tampering, the lawyer’s continued representation of the client may violate Rule 1.7. Rule
1.16(a)(1) would then require the lawyer to seek permission to withdraw from the case.
[16] In cases in which the lawyer learns of the client’s misconduct after the termination of
the proceeding in which the misconduct occurred, the lawyer is prohibited from reporting the
client’s misconduct to the tribunal. Even though the lawyer may have innocently assisted the client
to perpetrate the offense, the lawyer should treat this information as the lawyer would treat
information with respect to any past crime a client might have committed. The client’s offense will
be deemed completed as of the conclusion of the proceeding. An offense which occurs at an earlier
stage in the proceeding will be deemed an ongoing offense until the final stage of the proceeding is
completed. 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 an appeal has passed.
[17]These Rules apply to defense counsel in criminal cases, as well as in other instances.
However, the definition of the lawyer's ethical duty in such a situation may be qualified by
constitutional provisions for due process and the right to counsel in criminal cases. The obligation
of the advocate under these Rules is subordinate to any such constitutional requirement.
See Rule 1.0(c)
“Fraud” and “Fraudulent”See Rule 1.0(e)
“Knowingly,” “Known” and “Knows” See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonably Believes”See Rule 1.0(j)
“Tribunal”See Rule 1.0(m)
Paragraph (a)(1) is similar to DR 7-102(a)(5).
Paragraph (b): DR 7-102(A)(4) provides that a lawyer shall not "[k]nowingly use perjured
testimony or false evidence. There is no counterpart in the Disciplinary Rules to the second half of
the sentence.
Paragraph (c):DR 7-102(A)(4) provides that a lawyer shall not "[k]nowingly use perjured
testimony or false evidence.
Paragraphs (e) and (f): The comparable Disciplinary Rule is DR 7-102(B)(1) which
provides:
A lawyer who receives information clearly establishing that . . . his client has, in the course
of the representation, perpetrated a fraud upon a person or tribunal, shall promptly call upon
his client to rectify the same, and if the client refuses or is unable to do so, he shall reveal the
fraud to the affected person or tribunal, except when the information is protected as a
privileged communication
Paragraph (g):There is no counterpart to Paragraph (g) in the Disciplinary Rules.
Paragraph (h): DR 7-102(B)(2) provides that “[a] lawyer who receives information clearly
establishing that . . . a person other than his client has perpetrated a fraud upon a tribunal shall
promptly reveal the fraud to the tribunal.”
Paragraph (i): DR 7-108(G) provides that “a lawyer shall reveal promptly to the court
improper conduct by a venireperson or a juror, or by another toward a venireperson’s or a juror’s
family, of which the lawyer has knowledge.”
Note that there is no counterpart in the Proposed Rule to DR 7-106(B)(2), which provides
that, unless the information is privileged or irrelevant, a lawyer shall disclose to the tribunal the
identities of the clients he or she represents and of the persons who employed the lawyer.
Paragraph (a)(1): ABA Model Rule 3.3 (a)(1) only prohibits false statements of “material”
fact or law.
Paragraph (b): The prohibition against offering evidence known to be false is substantially
the same as the first sentence of ABA Model Rule 3.3(a)(4). There is no stated exception in the
Model Rule for the for the narrative testimony of a client who is a defendant in a criminal matter.
Paragraph (d): Paragraph tracks ABA Model Rule 3.3(c), except that the Proposed Rule
broadens the lawyer’s discretion to refuse to offer evidence to include not only false evidence,but
also misleading, fraudulent or illegally obtained evidence. On the other hand, the Rule does not
permit the lawyer to refuse to offer the testimony of a client who is a defendant in a criminal matter
when the lawyer only has reason to believe, as distinct from knowledge, that the testimony will be
false, misleading, fraudulent or illegally obtained. Paragraph (d) also grants the lawyer discretion to
refuse to use evidence the lawyer reasonably believes to be false.
Paragraphs (e) and (f): The ABA Model Rule counterparts to Paragraphs (e) and (f) are
found in Rules 3.3(a)(2) and (4) and 3.3(b). These rules provide that a lawyer must disclose to the
court information the non-disclosure of which would assist the client to perpetrate a fraud on the
court and that the lawyer must do so even if the information is protected by Rule 1.6. Rule
3.3(a)(4) deals particularly with the correction of evidence the lawyer has offered and which the
lawyer now knows to be false. The Proposed Rule requires a “noisy” attempt to withdraw from the
representation rather than disclosure of confidential information to the tribunal.
Paragraph (g): Model Rule 3.3(a)(4) and (b) more broadly requires the lawyer to take
reasonable remedial measures, including, if necessary, disclosure to the tribunal, of information
relating to the representation.
Paragraphs (a), (b) and (j): Without change in substance, Paragraph (a)(3) has been added
to paragraph (b) and paragraph (J) has been relocated to paragraph (a)(3).
Paragraph (a)(1): The prohibition against a lawyer making false statements of law or fact is
no longer limited to statements of “material” fact or law. The Committee can see no reason for a
lawyer to ever knowingly lie to a court.
Paragraph (b): The original proposal, which that allowed a lawyer to refuse to offer any
evidence that the lawyer reasonably believes to be false or misleading, has been modified to
eliminate this discretion when the evidence in question is the testimony of a client who is a
defendant in a criminal matter. The Committee thinks that the right of a criminal defendant to
testify is so fundamental that a lawyer should not be allowed to overrule a client’s decision to testify
unless the lawyer knows the testimony is false or misleading.
Paragraph (c):The Committee has deleted paragraph (C) which read as follows, and
renumbered subsequent paragraphs:
necessary to avoid assisting a criminal or fraudulent act by the client, except that if such
disclosure is not permitted by Rule 1.6 or 1.8(B), the lawyer shall
the disclosure; and
(3) if the client refuses or is unable to authorize the required disclosure, seek
permission of the tribunal to withdraw from the representation of the client and
inform the tribunal, without further disclosure of information protected by Rule 1.6,
that the lawyer's request to withdraw is required by the Rules of Professional
Conduct.
Proposed paragraphs (c) and (d) (as relettered in the Final Draft) effectively prevent a
lawyer from assisting a client to commit a crime or fraud related to an adjudicative proceeding,
making it unnecessary to have another rule requiring withdrawal if the lawyer’s silence will assist
the client commit a crime or fraud.
Delete paragraph (E)(3): The Committee has deleted paragraph (E)(3) from the Preliminary
Draft. It required a lawyer who is no longer representing a client but learns that the client had
perpetrated a fraud against the tribunal while the lawyer was representing the client to inform the
court, without further disclosure of information protected by Rule 1.6, that the lawyer had learned
information that would have required the lawyer to withdraw if the lawyer were still representing the
client. The Commission concluded that the duty to make “noise’ is only appropriate when
necessary to facilitate the lawyer’s withdrawal from the representation of a client under
circumstances in which the lawyer’s continued representation will assist the client consummate the
crime or fraud. That, of course, is not the case when the lawyer is no longer representing the client.
Paragraph (g): The Committee deleted the requirement that a lawyer make reasonable efforts
to secure interlocutory appellate relief from an adverse ruling of the tribunal with respect to a claim
of privilege and added language to Comment [14] indicating that decision making governing
interlocutory appeals is governed by Rules 1.2 and 3.1.
Comment [7]: The Committee has added language to indicate that “proceeding has
concluded within the meaning of Rule 3.3 when a final judgment in the proceeding has been
affirmed on appeal or the time for an appeal has passed.”
Made
1. In its Comment to Rule 1.6, the Board of Professional Responsibility has, without further
explanation, called Rule 3.3 “a very complicated, untenable analysis that is impossible to follow.”
With due respect, the Committee would describe it as a comprehensive, detailed, step-by-step guide
for lawyers who need to know how to comply with current Tennessee law when faced with one of
the most difficult, and potentially dangerous, questions of professional ethics. The criminal defense
bar, in particular, has welcomed the step-by-step directions provided by the Rule. With that said,
however, the Committee on its own motion is recommending several changes to Rule 3.3 that make
the Rule more user-friendly. Only two of these changes have any substantive effect:
a. Paragraph (g) and Comment [13] are new and require that a lawyer who comes
the evidence, but without further disclosure of information protected by Rule 1.6. Because
disaffirmance, like withdrawal, can be accomplished without disclosure of information protected by
Rule 1.6, it is required when necessary for the lawyer to avoid assisting a fraud on the tribunal.
b. In Paragraph (h), the Committee has deleted the requirement that a lawyer seek
such requirement in DR 7-102(b)(2) and, given that Paragraph (e) only applies if the client is not
implicated in the misconduct and requires that the lawyer report the misconduct, the Committee sees
no need for prior consultation with the client.
2. Substantively, the Committee’s proposal has been endorsed by the Tennessee
Association of Criminal Defense Lawyers, but is opposed by representatives of Tennessee’s United
States Attorneys, the Tennessee District Attorneys General Conference, the Tennessee Association
of Chiefs of Police, Professor Neil P. Cohen, the East Tennessee Victim’s Rights Task Force, and
several other commentators interested in victim’s rights. Because of the similarity of the concerns
raised by these commentators, the Committee will direct its response to the changes proposed by
the Tennessee District Attorneys General Conference (TDAGC).
a. Paragraph (a)(3) - candor in ex parte proceedings: The TDAGC recommends
proceeding. The Committee agree that the duty of candor in paragraph (a)(3) should not extend to
grand jury -- not because it is not an ex parte proceeding, but because it is not a tribunal (which is
defined in Rule 1.0(m) as “a court or other adjudicative body.”The Committee has dropped from
the Comment to Rule 3.8 a sentence that indicated that paragraph (a)(3) was applicable to grand
juries. With that deletion, the Committee thinks it is sufficiently clear that grand jury proceedings
are investigatory, rather than adjudicatory, and that it is not necessary to lengthen the Rule to make
this point.
b. Paragraph (b) - offering or using false evidence: The TDAGC would modify
believes to be false, misleading, fraudulent, or illegally obtained. Currently, the Committee’s draft,
like the ABA Model Rule, prohibits a lawyer from offering evidence the lawyer knows to be false.
A lawyer who does not know the evidence is false may offer it or use it, leaving the determination of
its truth or falsity to the finder of fact. To prohibit a lawyer from offering or using evidence when
the lawyer does not know of its falsity is to place the lawyer in the role of fact-finder. This would
be the effect of the change proposed by TDAGC, because it would preclude offering or using false
evidence when the lawyer did not “know” of its falsity, but only had “reason to believe” that it
was false. The Committee’s proposal, however, explicitly provides that a lawyer has the discretion,
notwithstanding client instructions to the contrary, however, to refuse to offer or use evidence the
lawyer reasonably believes, but does not know, to be false, or reasonably believes to be misleading
or illegally obtained. This is explained in Comments [5] and [6]. To better flag the distinction
between the prohibition against offering or using evidence known to be false and the grant of
discretion to refuse to offer or use evidence the lawyer reasonably believes to be false or misleading,
the Committee recommends that Paragraph (b) be broken into three separate paragraphs -
Paragraph (b) prohibiting offering evidence the lawyer knows to be false, Paragraph (c) prohibiting
use of evidence known to be false, and Paragraph (d) permitting, but not requiring the lawyer to
refuse to offer or use evidence the lawyer reasonably believes, but does not know, to be false.
3. Paragraphs (e) and (f) - client’s intent to perpetrate a fraud on the court or to commit an
offense against the administration of justice:Except for allowing a defendant in a criminal
proceeding to offer undirected false testimony, the TDAGC recommends that this paragraph be
revised to prohibit the lawyer from seeking to withdraw from the representation, as is required by
the Committee’s proposal and current Tennessee law, and would require the lawyer to advise the