Candor Toward the Tribunal and Fairness to Opposing Counsel
The candor and fairness domain rewards precision. The exam expects you to know that candor duties override the client's wishes and continue after withdrawal, and that zealous advocacy never licenses obstruction.
Candor: Rule 3.3
A lawyer may not knowingly make a false statement of fact or law, must correct a false statement previously made, and must disclose controlling legal authority directly adverse to the client's position that opposing counsel has not disclosed. The lawyer may refuse to offer evidence the lawyer knows is false and must take reasonable remedial measures, including disclosure to the tribunal if necessary, when the client testifies falsely. Rule 3.3 permits revealing confidential information to the extent reasonably necessary to remedy the falsehood. In ex parte proceedings the lawyer must disclose all material facts.
Fairness: Rules 3.4 and 4.1 to 4.4
A lawyer may not obstruct access to evidence, falsify evidence, counsel disobedience of a court order, make frivolous discovery requests, fail to make a diligent good-faith effort to comply with discovery, conceal documents, or threaten criminal charges solely to gain advantage in a civil matter. Statements to others may not be false. A lawyer may not communicate about the subject of the representation with a represented person without that person's lawyer's consent. If a lawyer receives a document that appears to have been sent inadvertently, Rule 4.4(b) requires prompt notice to the sender.
Worked example
A client testifies at deposition, 'I never saw the memo,' but the lawyer knows the client reviewed it. The correct sequence is to remonstrate privately, urge correction, and, if the client refuses, seek to withdraw and disclose to the tribunal only to the extent necessary to correct the falsehood. Arguing later that the client simply was not credible is not an adequate remedy when the lawyer knows the testimony is false.
Traps
- Assuming the duty ends at withdrawal; the duty to correct continues to the conclusion of the proceeding.
- Failing to disclose adverse controlling authority because the opponent missed it.
- Treating a mistaken citation as harmless when it remains uncorrected.
- Reviewing and using an inadvertently produced privileged document without notifying the sender.
- Threatening criminal prosecution to leverage a civil settlement.