Litigation & Advocacy · 10-16% of the exam
13.2.5Corruption of proceedings and ex parte duty (Rule 3.3(b), (d))
On this page
- Rule 3.3(b) — 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 (Model Rule 3.3(b))
Why
Two blind spots threaten a tribunal. Wrongdoing aimed at a proceeding — tampering, bribery, hidden evidence — is usually invisible from the bench. And where only one side appears, no opponent exists to supply the facts that cut the other way. The lawyer in the room is the court's only safeguard.
Plain English
Representing a client in an adjudicative proceeding, if you know that any person (not only your client):
- intends to engage,
- is engaging, or
- has engaged
in criminal or fraudulent conduct related to the proceeding, take reasonable remedial measures, including disclosure to the tribunal if necessary.
And in a proper ex parte proceeding, affirmatively inform the court of every material fact you know that will enable an informed decision, adverse ones included.
Rule
Rule 3.3(b) — 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 (Model Rule 3.3(b))
Comment [12]: covered conduct: destroying or hiding evidence, bribing a witness, intimidating a juror, bribing a judge, failing to comply with a court disclosure order.
"A person" is not limited to the client; a third-party witness's jury tampering triggers the lawyer's duty.
Rule 3.3(d) — In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable an informed decision, whether or not those facts are adverse (Model Rule 3.3(d))
The duty is affirmative: volunteer adverse material facts, not merely refrain from lying.
Applies in proper ex parte proceedings such as TRO applications.
Distinguish from Rule 3.5(b), which forbids improper ex parte contact with the tribunal during a pending case.
Example 1
Ex. 1
Vera represents a creditor seeking an emergency TRO to freeze a debtor's accounts. The application is ex parte. Before filing, Vera learns of a prior court-ordered garnishment that has partially satisfied the debt and would narrow any TRO the court might issue.
Vera must disclose the garnishment. Rule 3.3(d) requires presenting all material facts enabling an informed decision, including adverse ones. No opposing party is present to fill the gap. Empty the other counsel table: nobody else is there to put the garnishment in front of the judge.
Trap
Tip
Rule 3.3, Rule 3.6, and Rule 3.8(f) at a glance
| Feature | Rule 3.3 (candor to the tribunal) | Rule 3.6 (trial publicity) | Rule 3.8(f) (prosecutor's extrajudicial statements) |
|---|---|---|---|
| Who it binds | Any lawyer representing a client before a tribunal | A lawyer who is or has been participating in the investigation or litigation of a matter; Rule 3.6(d) extends it to every lawyer in the same firm or government agency | A prosecutor in a criminal case, who must also exercise reasonable care to keep investigators, law-enforcement personnel, employees, and others assisting from saying what the prosecutor could not |
| What it forbids | False statements of fact or law to the tribunal and failing to correct the lawyer's own prior false statement of material fact or law; offering evidence known to be false; failing to disclose known controlling-jurisdiction authority directly adverse to the client's position and not already disclosed by opposing counsel; and failing to take reasonable remedial measures on knowing of criminal or fraudulent conduct related to the proceeding | An extrajudicial statement with a substantial likelihood of materially prejudicing the proceeding | An extrajudicial comment with a substantial likelihood of heightening public condemnation of the accused |
| Mental state | Knows; actual knowledge, though it can be inferred from the circumstances | Knows or reasonably should know | The rule text sets an objective substantial-likelihood standard; unlike Rule 3.6(a), it adds no separate knows-or-reasonably-should-know element |
| Timing | Through the conclusion of the proceeding (Rule 3.3(c)) | While the lawyer is participating, or has participated, in investigating or litigating the matter; the rule text sets no fixed end point | While the matter is a pending criminal case; the rule text sets no fixed end point either |
| Key exception | None for false evidence once the lawyer knows it is false | The safe harbor statements in Rule 3.6(b) and the right of reply in Rule 3.6(c) | Only statements that are both necessary to inform the public of the nature and extent of the prosecutor's action and serving a legitimate law-enforcement purpose |
Questions · 2
Q 01ch13-e09
Question 1 of 2 · Rule 3.3(b)
Attorney defended Corporation in a products-liability trial. Midway through the trial a paralegal handed Attorney copies of text messages between a witness the plaintiff had called and two seated jurors. Attorney read the messages and confirmed that the witness was offering each juror cash for a favorable vote. The witness is not Attorney's client, and neither Attorney nor Corporation had any hand in the payments. The jury has not begun deliberating and no verdict has issued. Attorney decided the tampering was the court's problem to discover and said nothing to anyone. Is Attorney subject to discipline?
Keys 1 to 4 choose.