Client Confidentiality · 6-12% of the exam
7.3.1The perjury protocol — candor overrides confidentiality (Rule 3.3)
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- Rule 3.3 — three-step ordered protocol for client perjury
Why
A court can decide a case only on what it is told. A lawyer who knows the testimony is false and stays silent lets the judgment rest on something she knows to be untrue, and that is the one thing an adversary system cannot absorb and still function. Candor toward the tribunal is where confidentiality stops.
Plain English
On learning of client perjury the lawyer:
- first urges the client to rectify it,
- then seeks to withdraw, and
- if that fails to undo the false evidence already before the tribunal, must disclose the fraud even though disclosure reveals confidential information.
Rule 3.3(c) carries the duties stated in paragraphs (a) and (b) past Rule 1.6. Actual knowledge triggers the protocol; reasonable belief does not. The obligation ends when the proceeding concludes.
Rule
Rule 3.3 — three-step ordered protocol for client perjury
Step 1. Urge the client to rectify. Tell the client to tell the truth or return to the stand to correct the false testimony.
Step 2. Seek to withdraw. Attempt withdrawal. In a litigated matter, Rule 1.16(c) requires compliance with any applicable law demanding notice to or permission of the tribunal.
Narrative option (some jurisdictions): If the court denies withdrawal, some courts allow or require the lawyer to present the client in narrative format. The client testifies in a free narrative without guiding questions or lawyer objections, preserving the client's right to testify while the lawyer avoids actively facilitating the false testimony. The narrative approach is a minority accommodation — never select it as the ABA answer on the MPRE.
Step 3. Disclose to the tribunal. If withdrawal is denied, or is granted but does not undo the false evidence already before the tribunal, the lawyer MUST disclose the fraud to the tribunal, even if doing so reveals confidential information. Rule 3.3(c) carries this duty, and every other duty in paragraphs (a) and (b), past Rule 1.6.
Additional rules:
Actual knowledge required. The protocol is triggered only by actual knowledge that testimony is or will be false. Reasonable belief alone does not trigger it. That knowledge can be inferred from the circumstances, though, and a lawyer cannot ignore an obvious falsehood (Comment [8]). If the lawyer only reasonably believes — but does not actually know — that testimony will be false, the protocol does not activate — but the lawyer may still refuse to offer the evidence, except a criminal defendant's own testimony, which the lawyer must honor.
Duration of duty. The disclosure obligation ends when the proceeding concludes:
- (a) final judgment affirmed on appeal, or
- (b) time for appellate review expires.
In a criminal case, an acquittal ends the proceeding — the Double Jeopardy Clause bars any retrial, so there is no tribunal left before which to correct the record. Perjury discovered after the proceeding concludes creates no disclosure obligation.
A client has no constitutional right to commit perjury. A lawyer who discloses the client's perjury to the tribunal does not provide constitutionally ineffective assistance of counsel (so held in Nix v. Whiteside).
Example 1
Ex. 1
A criminal defense lawyer mid-trial becomes certain her client just gave false testimony. She urges correction (step one); the client refuses. She moves to withdraw (step two); the court denies. Step three is mandatory: she must disclose to the tribunal. The obligation persists until the proceeding concludes: acquittal, affirmance on appeal, or expiration of the appeal window. Number her three moves as you read: only the third one left her no choice.
Example 2
Ex. 2
Ray defends Omar at a civil bench trial. Ray becomes certain Omar's testimony is false and immediately alerts the judge, skipping steps one and two. The disclosure is premature: actual knowledge triggers the protocol, but step three comes only after steps one and two have failed. Skipping to the tribunal violates the sequence. Credit Ray with what he got right — he actually knew — and he is still two steps early.
Trap
Tip
Questions · 2
Q 01ch07-e08
Question 1 of 2 · Rule 3.3(a)(3)
Attorney represented Client at a bench trial over an unpaid equipment lease. On the stand, Client testified that a repair invoice had been mailed on a date Attorney knew, from documents already in the file, to be false. Attorney said nothing to Client during the recess that followed and made no attempt to have the testimony corrected. Instead, at the start of the afternoon session, Attorney told the judge that Client's testimony about the mailing date was untrue. Attorney never moved to withdraw. The trial is continuing. Is Attorney subject to discipline?
Keys 1 to 4 choose.