By Edward McIntyre
On November 1, 2018, all California lawyers face a challenge. New and revised Rules of Professional Conduct become effective. “Trick or treat” the day after Halloween.
Although the primary purpose of the rules is lawyer discipline, they define “duty” for a breach of fiduciary duty claim (Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 44; American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.4th275, 279), and they can establish the standard of care in other respects for a professional negligence claim (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086-1087; Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1147). So risk mitigation should always be in the forefront of our consideration when examining the rules — especially new or changed rules.
New Rule 3.3 (Candor Toward The Tribunal) is one such rule. It prohibits knowingly making a false statement of fact or law to a tribunal — no surprise there. Rule 5-200 requires using means “only as are consistent with truth” and prohibits misleading a judge, judicial officer or jury “by artifice or false statement.”
But Rule 3.3 goes further. It prohibits failure to correct a false statement of material fact or law the lawyer previously made to the tribunal — and defines “tribunal” very broadly: a court; an arbitrator; an administrative law judge; an administrative body acting in an adjudicative capacity; a special master or other person to whom a court refers a matter, when the decision or recommendation of the person would bind the parties if the court approved it. The duty of candor during a settlement conference or mediation would fall within the scope of another rule (rule 4.1) — the prohibition against knowing false material statements to a third party when representing a client.
More to the point, the rule mandates that if a lawyer, the lawyer’s client, or a witness the lawyer called has offered material evidence that the lawyer comes to know is false, the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” The only exception: if the information the lawyer has learned is client confidential information protected by Business and Professions Code section 6068, subsection (e)(1) — duty to hold client confidences inviolate at every peril to himself or herself — and Rule1.6, the new version of Rule 3-100.
This obligation to take “reasonable remedial measures” lasts until the conclusion of the proceeding, which means until a final judgment in the proceeding has been affirmed on appeal or the time for review has passed, with the caveat that a prosecutor may have obligations that go beyond the scope of this rule, referring them to Rule 3.8(f) and (g) — special duties of prosecutors.
Let’s take an example to test a possible impact of the rule. A lawyer returns to her office with her client and an expert who has finished testifying that day. Lawyer and client were pleased with the expert’s testimony, especially the way he handled cross-examination. During a debriefing session in the office, they share that sentiment with the expert. Then the expert blurts out: “Thank goodness I wasn’t pressed harder about quality control or how I performed my tests. They might have found out I didn’t do them. My assistant did. I was out of town. Never saw one.”
But the expert had testified on direct, and briefly on cross, that he had performed all the tests himself; recorded all the results himself; followed his protocol faithfully. All material to the quality of the results and, thus, his opinions based on those results.
The lawyer tells her client that she must take “reasonable remedial measures;” in her judgment that means correcting the misstatements. The expert refuses to return to court to correct his own testimony.
The client explodes and forbids the lawyer from doing so and will not even pay attention to the lawyer’s explanation that she might have to ask the court to allow her to withdraw, because continued representation will result in a violation of the rules or a provision of the State Bar Act (new Rule 1.16(a)(2) and Business and Professional Code section 6068, subdivision (d)) All her arguments fall on deaf ears.
The client spits back: “If you go back to tell the court, you’re fired!”
Can the lawyer, nonetheless, disclose the expert’s dishonest testimony to the judge, its impact on the client’s case notwithstanding? After all, the client was never entitled to perjured testimony in its favor — although the truth may now expose the lawyer’s failure adequately to supervise the expert or, at least, to prepare the expert to testify.[1]
The lawyer suspects the court will likely not allow her to withdraw in the middle of trial — in particular if her reason is only “an ethical duty to withdraw,” and she believes, if she discloses the true reason, it might create “reasonably foreseeable prejudice” to the rights of her client, where Rule 1.16, subdivision (d) tells her that she must take “reasonable steps to avoid” such prejudice.
Any ready answers? No. And this was the “easy” pattern that didn’t involve the client’s own testimony and the issue of client confidences.
We have three months until the new rules come into effect and we start to grabble with a new set of issues. Stay tuned.
Edward McIntyre is an attorney at law.
[1] That might raise a different issue: a conflict based on a “material limitation” because of the lawyer’s own interests adverse to those of the client, as found in the new conflict of interest rule (Rule 1.7) — a topic for another day.
This article was originally published in the SDCBA’s “Ethics in Brief” column series.
No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.