Litigation & Advocacy · 10-16% of the exam
13.2.1False statements of fact or law (Rule 3.3(a)(1))
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- A lawyer shall not knowingly make a false statement of fact or law to a tribunal, and shall not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (Model Rule 3.3(a)(1)).
Why
A tribunal has no independent way to check most of what lawyers tell it. It decides on the assumption that the officers of the court appearing before it are telling the truth. Once that assumption fails, the court's findings rest on something the system has no reliable way to detect or repair.
Plain English
Do not knowingly make a false statement of fact or law to a tribunal, and do not leave uncorrected a false statement of material fact or law you previously made to it. Actual knowledge is the trigger; suspicion is not — but knowledge can be inferred from the circumstances, and you cannot ignore an obvious falsehood.
The correction duty applies even where the original statement was made in good faith, and court reliance is not a precondition. A judge's own mistaken premise needs correcting only if you or the client caused it.
Rule
A lawyer shall not knowingly make a false statement of fact or law to a tribunal, and shall not fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer (Model Rule 3.3(a)(1)).
"Knowingly" means actual knowledge; suspicion does not trigger the duty. That knowledge can be inferred from the circumstances, though, and a lawyer cannot ignore an obvious falsehood (Comment [8]).
The duty to correct applies even when the original statement was made in good faith.
A judge's mistaken factual premise does not require correction unless the lawyer or the client caused the mistake.
Example 1
Ex. 1
Dan is plaintiff's counsel in a personal-injury action. At a preliminary hearing he tells the court — using numbers his client supplied — that a related claim settled for $80,000. Three weeks on, the client corrects that number to $50,000. No ruling has yet turned on the figure.
Dan must correct the statement. The duty arises when he learns the truth; original good faith is irrelevant and court reliance isn't required. Time Dan's duty from the client's correction, not from the hearing where he spoke.
Example 2
Ex. 2
Elena represents a plaintiff in contract litigation. At a status conference she tells the court the defendant's letter arrived March 3, based on the client file. Two weeks later, shipping records show delivery was March 10. No ruling has cited the date.
Elena must correct the statement at the next opportunity. Learning the falsity triggers the duty; the court need not have acted on the error. Rank the two facts in Elena's block: the wrong date decides it, the untouched docket does not.
Trap
Tip
Questions · 2
Q 01ch13-e04
Question 1 of 2 · Rule 3.3(a)(1)
Attorney represented Plaintiff in a wrongful-death action against a trucking company. At a scheduling hearing Attorney told the court that the decedent's employer had already paid the family forty thousand dollars in survivor benefits, a figure Attorney had taken in good faith from the client's file. The number matters because any award will be reduced by benefits already received. Six weeks later the client told Attorney that the correct amount was one hundred forty thousand dollars. The court has issued no order touching the figure, and the client has instructed Attorney to leave the record as it stands. Must Attorney correct the statement to the court?
Keys 1 to 4 choose.