Litigation & Advocacy · 10-16% of the exam
13.2.3False evidence and the three-step remedial protocol (Rule 3.3(a)(3))
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- A lawyer shall not offer evidence the lawyer knows to be false (Model Rule 3.3(a)(3)) — though a lawyer does not violate the rule by offering evidence for the purpose of establishing its falsity (Comment [5]).
Why
Evidence is the raw material a court reasons from. A lawyer who lets false evidence stand does not fail the tribunal only once; the judgment built on it carries the defect forward. A remedial duty is needed because simply leaving the case would leave the false material sitting in the record.
Plain English
Do not offer evidence you know is false — though offering evidence for the purpose of establishing its falsity does not violate the rule. A reasonable belief it might be false does not bar offering it, though you may refuse — except the testimony of a defendant in a criminal matter, who must be allowed to testify.
On coming to know that material evidence you, your client, or a witness you called offered is false — in the courtroom or in an ancillary proceeding conducted under the tribunal's adjudicative authority, such as a deposition:
- counsel the client and urge correction,
- seek to withdraw, and
- failing those, disclose to the tribunal.
Rule 3.3(c) carries every duty in paragraphs (a) and (b) past Rule 1.6, including the correction duty, so confidentiality does not excuse them. The duty runs until the proceedings are fully concluded.
Rule
A lawyer shall not offer evidence the lawyer knows to be false (Model Rule 3.3(a)(3)) — though a lawyer does not violate the rule by offering evidence for the purpose of establishing its falsity (Comment [5]).
Comment [8]: reasonable belief that evidence might be false does not preclude offering it.
- Permissive refusal
A lawyer may (but is not required to) refuse to offer evidence the lawyer reasonably believes, but does not know, to be false — other than the testimony of a defendant in a criminal matter, who must be allowed to testify.
- Reach (Comment [1])
The protocol applies in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition — paragraph (a)(3) requires reasonable remedial measures when the lawyer comes to know that a client testifying in a deposition has offered false evidence.
Three-step remedial protocol (triggered when the lawyer comes to know that material evidence offered by the lawyer, the client, or a witness the lawyer called is false):
- Step 1: Counsel the client confidentially; urge cooperation in withdrawing or correcting the false evidence.
- Step 2: Seek to withdraw. Note: withdrawal often does not solve the problem because the false evidence remains in the record or the next lawyer inherits the same obligation.
- Step 3: If all else fails, disclose to the tribunal even if doing so requires revealing Rule 1.6-protected information.
- Duration
The obligation continues until the proceedings are fully concluded — not merely until trial closes —
- final judgment affirmed on appeal, or
- the appeal period expired.
Example 1
Ex. 1
Gina is appellate counsel in a civil fraud case. A trial witness testified that a particular meeting never occurred. Two months into the appeal, that witness contacts Gina and admits the testimony was fabricated.
Gina must follow the three-step protocol: counsel her client and urge cooperation; if the client refuses, consider withdrawal, recognizing the next lawyer inherits the same duty; if no other remedy works, disclose to the appellate tribunal. The proceedings have not concluded, so the obligation is live. Freeze the case where Gina finds it — on appeal, undecided, and therefore not over.
Trap
Tip
Civil-vs-criminal false-evidence scenarios at a glance
| Scenario | Step 1 | Step 2 | Step 3 |
|---|---|---|---|
| False evidence already offered — discovered post-offering (civil or criminal) | Counsel client confidentially; urge correction or withdrawal | Seek to withdraw (next lawyer inherits the same duty) | Disclose to tribunal, overriding Rule 1.6 |
| Client proposes false evidence — civil | Dissuade | Refuse to offer it (unilateral; no Sixth Amendment right at stake) | — (refusal removes it from the proceeding; tribunal disclosure not required) |
| Client proposes false testimony — criminal | Attempt to dissuade | Refuse to offer the known-false evidence (cmt [6], applied to criminal defense counsel by cmt [7]); seek withdrawal (court may deny) | Disclose to tribunal; the narrative approach is NOT the ABA answer |
Questions · 1
Q 01ch13-e07
Question 1 of 1 · Rule 3.3(a)(3)
Attorney represented Plaintiff in a partnership-accounting trial and called a bookkeeper who testified that the disputed ledger entries had been made as each transaction occurred. The court entered judgment for Plaintiff largely on the strength of that testimony. While the losing partner's appeal was pending, the bookkeeper telephoned Attorney and admitted that the entries had in fact been written months afterward to match the client's account. Attorney told the client, who refused to authorize any correction and pointed out that the trial was over. Attorney concluded that nothing further could usefully be done and took no step of any kind. Is Attorney subject to discipline?
Keys 1 to 4 choose.