1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229-231
affirmative responsibility to accord the absent party just consideration. 
As provided in paragraph
,Tthe 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.
Evidence
[5] When evidence that a lawyer knows to be false is provided by a person who is not
similarly refuse to offer a client’s testimony that the lawyer knows to be false, except that paragraph
(b) permits the lawyer to allow a criminal defendant to testify by way of narrative if the lawyer’s
request to withdraw, as required by paragraph (f ),is denied. See paragraph (c)(2).
Paragraph (c)
precludes a lawyer fromaffirmingthe validity of, or otherwise using, any evidence the lawyer
[6]As provided in paragraph (d),Generally speaking, a lawyer has authority to refuse to
offer or usetestimony or other proof that the lawyer believes is untrustworthy. 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 or use
will be
false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client’s
decision to testify.
[8] A lawyer who is representing a client in an adjudicative proceeding and comes to know
prior to the completion of the proceeding that the client has perpetrated a fraud or committed
perjury or another offense against the administration of justice,or intends to do so before the end of
balance between the lawyer's duties of loyalty and confidentiality owed to the client and the equally
important duty of the lawyer to avoid assisting the client with the consummation of the fraud or
perjury. In all such cases, paragraph (e) requiresthe lawyer must toadvise the client to desist from
crime orfraud and inform the client of the consequences of a failure to do so. The
prohibits the lawyer from doing so.
[12]Paragraph (f) sets forth the lawyer’s responsibilities in situations in which the
lawyer’s client is implicated in the misconduct. and in whose misconduct the lawyer will be
In these situations, the Rules do not permit the lawyer to report the client’s offense.
Confidentiality under Rule 1.6 prevails over the lawyer’s duty of candor to the tribunal. Only if
[13]Although the lawyer may not reveal the client’s misconduct, the lawyer must not
voluntarily continue to represent the client, for to do so without disclosure of the misconduct
that
would assist the client to consummate the offense. The Rule, therefore, requires the lawyer to seek
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 turnwill advise them to rectify the fraud. Many, if not most, clients will abide by their lawyer’s
our legal system and profession cannot permit lawyers to assist clients who refuse to follow their
advice and insist on consummating an ongoing fraud.
[14]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
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.
[15]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.
Because disaffirmance, like withdrawal, can be accomplished without
Paragraph (h) only
the client has engaged in misconduct in connection with the proceeding. If the lawyer knows that
Upon learning prior to the completion of the proceeding that such
misconduct has occurred, however
, the lawyer is required by 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.
[10] Because jury tampering undermines the institutional mechanism our adversary
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 not mandate
requirethat 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.
[10]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.
[16]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.
in the ABA Model Rules.
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,