By Charles Berwanger
Practice law long enough and it will happen to you. You’ll learn, after the fact, that a witness on whom you were counting lied at a deposition. With trial looming, what do you do?
Rules of Professional Conduct, rule 3.3(a)(3) (Candor Toward the Tribunal) appears to provide an answer. If a lawyer comes to know that a witness the lawyer has called has offered material evidence that was false, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. But, the rule then cautions, “unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6” — California’s strict confidentiality obligation.
To give some authoritative guidance to lawyers caught in this situation, the SDCBA Board just approved an opinion of its Legal Ethics Committee (Opinion 2023-1) that addresses the dilemma: a lawyer’s obligation of candor to a tribunal and a lawyer’s obligation of confidentiality in rule 1.6 and the State Bar Act.
The opinion addresses the question: “What are a lawyer’s obligations when the lawyer learns that the lawyer’s expert witness has testified falsely at a deposition?” The opinion poses a fact situation where a lawyer learns, after the fact, that an expert witness whose testimony is critical for the client’s case testified falsely at his deposition about tests he claimed he personally performed to support his conclusions. His rational? If he had done the tests, they would have supported his conclusions. The expert refuses to correct his testimony, either at a resumed deposition, when reviewing the transcript, or at trial. Thus, the lawyer knows both that the expert testified falsely at the deposition and also that he would testify falsely if called as a witness at trial. Hence, rule 3.3(a)(3) prohibits the lawyer from allowing the expert to testify at trial.
The lawyer informs the client, who insists that the lawyer do nothing about the expert’s false testimony. Because the witness will not correct his testimony, and because the client needs an expert to testify at trial, the lawyer believes the best remedial measure to protect the client is to ask the court for permission to designate another expert who will testify candidly — because the client had nothing to do with the false testimony and needs an expert at trial. To do so, however, may require disclosing to the court the expert’s false deposition testimony.
The client refuses to allow that disclosure and demands the lawyer keep the information confidential.
Rule 3.3(a)(3) requires “disclosure to the tribunal” among the reasonable remedial measures, if necessary, which a lawyer “shall” take when the lawyer learns after the fact that the lawyer, the lawyer’s client, or a witness the lawyer called has offered false material evidence — unless section 6068, subdivision (e)(1) and rule 1.6 prohibits such disclosure.
Section 6068 (e)(1) requires a lawyer “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” California’s rule 1.6, and section 6068, subdivision (e) permit only one exception to a lawyer’s confidentiality obligation: they permit, but do not require, disclosure when a lawyer reasonably believes disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily injury to an individual. ABA model rule 1.6, on the other hand, has seven exceptions to confidentiality, including when a lawyer reasonably believes disclosure is necessary to prevent a client from committing a crime or fraud reasonably certain to result in substantial injury to another’s financial interests, for which the client is using or has used the lawyer’s services. If ABA Model rule 1.6 were applicable in California, it would permit disclosure of the expert witness’s false testimony to the tribunal. But the ABA Model Rules are not binding on California lawyers. (General Dynamics v. Superior Court (1994) 7 Cal.4th 1164, 1190, fn. 6; see also City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852.)
Thus, a lawyer in the situation the opinion poses must confront two seemingly intractable ethical mandates: disclose the expert witness’s false testimony to the tribunal in an effort to designate another expert, if other reasonable remedial measures fall short, or hold inviolate his client’s secrets and not disclose the false testimony, even to obtain permission for a substitute expert.
Any number of State Bar ethics opinions underscore that “client secrets” covers a significantly broader category of information than do confidential attorney-client communications, which are a subset of client secrets. “Client secrets” includes not only confidential attorney-client communications, but also information about the client that may not have been obtained through a confidential communication. “Client secrets” means any information a lawyer obtains during the professional relationship, or relating to the representation, that the client has requested be held inviolate or the disclosure of which might be embarrassing or detrimental to the client. (For example, Cal. State Bar Formal Opn. Nos. 1996-146; 1993-133; 2016-195; 2019-200; see also In the Matter of Johnson (Review Dept. 2000) 4 Cal State Bar Ct. Rptr. 179, 189, and rule 1.6 Comment [2].)
The opinion recognizes the tension between two important ethical values. Candor to a tribunal and California’s client confidentiality obligations are critical ethical mandates — the first important to the fair and just adjudication of disputes; the second, a core element of trust in the lawyer-client relationship. Comment [5] to rule 3.3, however, appears to give primacy to the confidentiality duty of rule 1.6 and section 6068, subdivision (e)(1). (Cal. State Bar Formal Opn. 2019-200 at p. 7, fn.13 “[I]n California, the duty of candor does not override the duty of confidentiality.”)
The opinion concludes that because the information the lawyer received from the expert witness about the witness’s own false testimony was, on balance, within the scope of material covered by Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6, and because of the client’s objection to its disclosure, even to support a request to designate another expert, the lawyer may not disclose the expert witness’s false testimony to the tribunal in spite of the lawyer’s obligation under rule 3.3(a)(3) and Business and Professions Code section 6068, subdivision(d). The lawyer may have an obligation to seek to withdraw from the representation. In doing so, however, the lawyer may not disclose the expert witness’s false testimony to the tribunal to support the lawyer’s motion to withdraw from representation.
This summary is no substitute for carefully reviewing the opinion itself and understanding its rationale. You can find the opinion on the SDCBA website in the members’ section under “Legal Ethics;” scroll down to “Legal Ethics Opinions.”