Attorneys must be honest for the justice system to work and for the system to have any credibility to the general public. To that end, attorneys had a duty of candor under the old California Rules of Professional Conduct (CRPC) 5-200 and continue to have one under the current CRPC 3.3., which brings important new facets, directives, and responsibilities.
First, CRPC 3.3 brings additional depth, breadth, and duration to the duty of candor. It says that an attorney “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”, “(2) fail to disclose to the tribunal legal authority,” and “(3) offer evidence that the lawyer knows to be false.” CRPC 3.3 goes deeper than CRPC 5-200’s directive to practice “such means only as are consistent with truth” by expanding the depth and detail of the prohibited dishonest, or otherwise unpermissible, behaviors. CRPC 3.3 is broader in scope by using the term “tribunal,” as defined in CRPC 1.0.1(m), to include other dispute resolution venues beyond the traditional trial and appellate courts. Additionally under CRPC 3.3(c) and comment , the duties continue until final judgment or expiration of the time to appeal, rather than until the termination of the representation.
Secondly, CRPC 3.3(a)(1) provides an affirmative obligation to correct any false statements, and CRPC 3.3(a)(3) and 3.3(b) identify that remedial measures must be taken to keep the truth in the forefront in order to meet the attorney’s duty of candor. Comment 5 provides some of the contours of reasonable remedial measures, including not limited to CRPC 1.2.1’s prohibition against “counsel[ing] a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” and “if the client is an organization, the lawyer should also consider the provisions of rule 1.13.”
An attorney’s duty of confidentiality to the client and duty of candor to the court are points of tension to balance in the ethical practice of law, including in the remedial measures analysis. CRPC 3.3 requires an attorney to do everything required to maintain a truthful record, with the exception of running afoul of an attorney’s duty “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code § 6068(e)(1)).
Rule 3.3(b) recognizes this tension, which highlights the primacy of attorney’s duty to maintain the client’s confidence in California, such that the “ethical duty of confidentiality is much broader in scope and covers communications that would not be protected under the evidentiary attorney-client privilege.” (The State Bar of California Standing Committee on Professional Responsibility and Conduct (“COPRAC”) in Formal Opinion No. 2016-195 quoting In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189).
About the Author:
Shawn McCall, PsyD, Esq. is an attorney and forensic psychologist practicing throughout the Bay Area with a focus on Family Law. His professional activities include practicing, lecturing, and publishing, and he also provides pro bono legal services through the Justice and Diversity Center of the Bar Association of San Francisco.