American College of Trust and Estate Counsel | ACTEC Commentaries, 4th Edition

American College of Trust and Estate Counsel
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ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT

MRPC 3.3: CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, the lawyer reasonably believes is false.

(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.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by MRPC 1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

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ACTEC COMMENTARY ON MRPC 3.3

A lawyer may not mislead the court with regard to any matter before it, including ex parte applications. In particular, a lawyer may not assist a client by presenting to the court any petition, accounting, or other document or evidence that is false or fail to correct a false statement of material fact or law previous made to the court by the lawyer. If a lawyer knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to a matter shall take reasonable remedial measures, including, if necessary disclosure to the court. See Pierce v. Lyman, summarized in the Annotation following the ACTEC Commentary on MRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer). A lawyer should not construe too narrowly the scope of the term “criminal or fraudulent”. In the context of the lawyer-client communications privilege, a client's fraudulent conveyance of property may be a fraudulent act that must be disclosed by the lawyer to a court. Similarly, frustrating an order of the court may involve a fraud, justifying disclosure of confidential information. This rule is consistent with MRPC 1.2(d) (Scope of Representation and Allocation of Authority Between Client and Lawyer), which prohibits a lawyer from assisting a client in criminal or fraudulent conduct, and MRPC 4.1 (Truthfulness in Statements to Others), which prohibits the lawyer from making false statements to any third party. A lawyer for a courtappointed fiduciary should consider the extent to which MRPC 3.3 may require the lawyer to disclose to the court any criminal or fraudulent conduct by the fiduciary.

Example 3.3-1. To remedy a breach of trust, the court appoints a special fiduciary (SF) to take possession of the trust property and administer the trust. See Uniform Trust Code §1001(b)(5). SF retains lawyer (L) to represent SF in matters pertaining to the trust. L prepares and files a pleading with the court seeking approval of SF’s itemized invoice of its fees and includes the invoice with the pleading. Later, L discovers that a substantial portion of the invoice was for time that SF did not spend on trust matters. SF refuses to prepare a corrected invoice for submission to the court. L should take corrective action. Depending on the circumstances, L may be able to correct the false statement by informing the beneficiaries, or L may need to inform the Court of the false statement. Since the pleading seeks approval of the invoice, the false statements in the invoice are material false statements subject to MRPC 3.3(a)(1).

ANNOTATIONS
See Caveat to Annotations
(Limiting the Scope and Purpose of the Annotations)

Ethics Opinion

Illinois:

Op. 98-07 (1999). Lawyer who had represented a guardian and in the course of the representation had prepared accountings for the guardian and presented them to the court later discovered that the accountings were false. The lawyer no longer represented the guardian. The lawyer has a duty to take appropriate remedial action to avoid assisting the guardian in concealing the misappropriation of estate assets from the court even if the lawyer must disclose what would otherwise be confidential client information. Illinois version of MRPC 3.3(b), like the parallel Model Rule, provides that a lawyer’s duty to take remedial action is a continuing duty, even though the fraud was committed by a former client.

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