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
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
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
Court of the client’s misconduct if there was no other way to prevent the fraud. The Committee’s
proposal only requires the lawyer to advise the Court that the motion to withdraw is required by the
Rules of Professional Conduct. Incidental to this proposal, the TDAGC would delete paragraph (j)
that provides guidance to the lawyer about how to respond to a judge’s request for further
information after the lawyer has requested permission to withdraw.
There is a stark difference between the Committee’s proposal, which is supported by
TACDL, and the TDAGC proposal. The TDAGC imposes a duty to report client’s intended crime
or fraud to the court if necessary to prevent its commission. The Committee’s proposal requires
that the lawyer seek permission to withdraw so that the lawyer will not assist the client commit the
crime, but does not further elevate the lawyer’s duty to the tribunal over the lawyer’s duty of
confidentiality owed to the client. While acknowledging that the TDAGC proposal is consistent
with the ABA Model Rule 3.3 and the Ethics 2000 Commission’s proposal, the Committee’s
proposal represents our attempt to codify current Tennessee law as understood in light of this
Court’s decision not to amend DR 7-102(B)(1) in confirmation of the holding in Formal Ethics
Opinion 93-F-133, which no longer reflects Tennessee law. The Committee’s believes that the
Court struck the right chord when it held that a lawyer should not be allowed to assist client
misconduct by continuing to represent the client, but otherwise should be required to preserve the
confidentiality of information relating to the representation. Incidental to the obligation to withdraw
is the limited obligation to advise the court the lawyer’s request for permission to withdraw is
required by the Rules. The TDAGC, on the other hand,rejects withdrawal as an effective means to
avoid assisting the client’s fraud or crime because the client will have learned to conceal the
misconduct from the new lawyer who undertakes the client’s representation in the proceeding.
4. Paragraphs (e) and (f) - client’s commission of crime or fraud during the course of the
lawyer’s representation:The thrust of the TDAGC proposal is the same as its proposal with
respect to a client’s intention to commit a crime or fraud. Except for false testimony by a client in a
criminal matter, a lawyer who comes to know that a client has perpetrated a fraud upon the tribunal
or committed an offense against the administration of justice must report the misconduct to the
tribunal. The Committee’s proposal requires an attempt to withdraw, but precludes reporting the
offense to the tribunal. This is the situation specifically addressed by DR 7-102(B)(1), and the
Committee’s proposal is consistent with the Court’s resolution of this issue by rulemaking in
1996. The TDAGC proposal is consistent with ABA Model Rule 3.3 and the Ethics 2000
Commission proposal.
5. Paragraphs (e) through (i)duties only attach if lawyers comes to know of misconduct
“prior to the conclusion of the proceeding:”The TDAGC wants to require that a lawyer report
frauds on the court and other offenses against the administration of justice even if the lawyer first
learns about the fraud or crime after the proceeding has been concluded. Because the offense is
completed once the proceeding is concluded , the Committee’s proposal does not require
withdrawal under Paragraph (d) because continued representation can no longer assist the client
commit the offense and does not require disclosure under Paragraphs (e) and (f) because the crime
ordinarily can no longer be prevented or rectified once the proceeding has concluded. Surely,
disclosure would not be permitted if, after the conclusion of the proceeding, the perpetrator went to
another lawyer and confessed. The Committee does not think the outcome should be different
because the perpetrator confesses to the lawyer who was representing him in the proceeding to
which the offense related.
6. The key points of disagreement with respect to Rule 3.3 relate to whether lawyers should
have an affirmative duty to breach client confidentiality whenever necessary to protect the
administration of justice against fraud or criminal misconduct or whether it is sufficient that the
lawyer take such action, and only such action, as is necessary to avoid assisting the crime or fraud.
While conceding that most jurisdictions have adopted the ABA Model Rule that requires disclosure
if the lawyer learns of the misconduct prior to the conclusion of the proceeding, the Committee
believes that confidentiality should prevail. If, however, the Court decides to impose a duty on
lawyers to reveal frauds on the court or other crimes against the administration of justice, the
Committee would recommend that the Court consider adopting ABA Model Rule 3.3, as revised by
the ABA Ethics 2000 Commission, rather than the TDAGC’s amendments to the Committee’s
proposal as modified TDAGC proposal. The Rule text would read as follows:
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;
known to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel; or
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. 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.
A lawyer who represents a client in an adjudicative proceeding 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.
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.
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known
to the lawyer which will enable the tribunal to make an informed decision, whether or not the
facts are adverse.
There are three primary substantive differences between the TDAGC and this Ethics 2000
proposal. First, the Ethics 2000 proposal would not permit a lawyer for a defendant in a criminal
case to allow the client to testify falsely by way of an undirected narrative, unless the courts have
previously held that the client has a constitutional right to so testify. Second, the disclosure
obligations in the Ethics 2000 proposal terminate at the conclusion of the proceeding. Finally, the
Ethics 2000 proposal does not prohibit a lawyer from seeking permission to withdraw from the
representation, but leaves that issue to be resolved by reference to Rule 1.16 that addresses
mandatory and permissive withdrawal. Also, if the Court chooses to recognize a duty of candor to
more closely into line with the ethics rules in other jurisdictions. Conforming changes would need
to made to the Comments.
PROPOSED RULE 3.4
FAIRNESS TO OPPOSING PARTY AND COUNSEL
conceal a document or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act; or
based on an assertion that no valid obligation exists; or
diligent effort to comply with a legally proper discovery request by an opposing party; or
will not be supported by admissible evidence; or
or
the culpability of a civil litigant or the guilt or innocence of an accused; or
a person other than a client to
refrain from voluntarily giving relevant information to another party unless:
affected by refraining from giving such information.
h) offer an inducement to a witness that is prohibited by law; or pay, offer to pay, or
acquiesce in the payment of compensation to a witness contingent on the content of his
testimony or the outcome of the case. A lawyer may advance, guarantee or acquiesce in the
payment of:
testifying; or
[1] The procedure of the adversary system contemplates that the evidence in a case is to be
marshaled competitively by the contending parties. Fair competition in the adversary system is
secured by prohibitions against destruction or concealment of evidence, improperly influencing
witnesses, obstructive tactics in discovery procedure, and the like.
[2] Documents and other items of evidence are often essential to establish a claim or
defense. Subject to evidentiary privileges, the right of an opposing party, including the government,
to obtain evidence through discovery or subpoena is an important procedural right. The exercise of
that right can be frustrated if relevant material is altered, concealed or destroyed. Applicable law in
many jurisdictions makes it an offense to destroy material for the purpose of impairing its
availability in a pending proceeding or a proceeding the commencement of which can be foreseen.
Falsifying evidence is also generally a criminal offense. Paragraph (a) applies to evidentiary
material generally, including computerized information.
3] Although paragraph (f) broadly prohibits lawyers from taking extrajudicial action to
impede informal fact-gathering, it does permit the lawyer to request that the lawyer’s client, and
relatives or employees or agents of the client, refrain from voluntarily giving information to another
party. This is because such relatives and employees will normally identify their interests with those
of the client. See also Rule 4.2.
h), it is not improper to pay a witness's expenses or to
compensate an expert witness on terms permitted by law. The common law rule in most
jurisdictions is that it is improper to pay an occurrence witness any fee for testifying and that it is
improper to pay an expert witness a contingent fee.
See Rule 1.0(f)
“Material”See Rule 1.0(g)
“Reasonable” and “Reasonably” See Rule 1.0(i)
“Reasonably Believes”See Rule 1.0(j)
“Tribunal”See Rule 1.0(m)
Paragraph (a):DR 7-109(A) provides that a lawyer "shall not suppress any evidence that
the lawyer or the lawyer’s client has a legal obligation to reveal." DR 7-109(B) provides that a
lawyer "shall not advise or cause a person to hide or to leave the jurisdiction of a tribunal for the
purpose of becoming unavailable as a witness. . . ."
Paragraph (b): DR 7-102(A)(6) provides that a lawyer shall not participate "in the creation
or preservation of evidence when the lawyer knows or it is obvious that the evidence is false."
Paragraph (c):Paragraph (c) is substantially similar to DR 7-106(A), which provides that a
lawyer "shall not disregard . . . a standing rule of a tribunal or a ruling of a tribunal made in the