The Inquirer represents a plaintiff in a personal injury action arising from a collision with motorized equipment on the defendant's business premises. The plaintiff informed the Inquirer that he had a friend who worked for the defendant, and that this friend had learned from the person in charge of defendant's security department that the collision should have been recorded on defendant's surveillance videotape equipment.
Based on this information, plaintiff's counsel made a request to defendant for the production of any videotape of the incident. After defendant denied that such a videotape existed, the Inquirer informed defense counsel that he believed the tape existed, and that he was going to meet with a person who heard an employee of the defendant state that there should be a videotape of the incident.
In response, defense counsel made several unsuccessful efforts to learn the identity of the person who gave plaintiff information about the alleged existence of a videotape. First, defense counsel asked the Inquirer to inform him of the person's identity, which the Inquirer declined to do. Second, during plaintiff's deposition, defense counsel asked plaintiff several questions that were calculated to discover whether plaintiff had talked to any representative of the defendant about the existence of a videotape. The Inquirer says that, in response to these questions, plaintiff testified falsely when asked to reveal the names of all persons with whom he discussed the collision, and whether any of said persons worked for the defendant. The Inquirer stated that his client did not identify his friend in an effort to protect his job and reputation as an employee of the defendant. Third, defense counsel asked questions about whether plaintiff knew anyone who worked for defendant. The Inquirer objected to these questions and subsequently prevailed in a discovery argument before the Court, which, according to the Inquirer, found that whether plaintiff knew anyone who worked for the defendant was not a material issue of fact.
Plaintiff prevailed during an arbitration but has demanded a trial de novo. The Inquirer requests the Committee to determine whether the Pennsylvania Rules of Professional Conduct require him to disclose the client's false statement to defense counsel and/or to supply defense counsel with the name of the defendant's employee that his client did not disclose during the deposition.
Rule 1.6(a) sets forth a general duty of confidentiality:
A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).
As this provision expressly recognizes, there are certain exceptions to the general rule. Rule 1.6(b) describes circumstances where a duty of disclosure is mandatory, rather than permissive, and provides that [a] lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
Rule 3.3(a) includes two potentially relevant provisions. In pertinent part, Rule 3.3(a) provides that:
A lawyer shall not knowingly:
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
A. Analysis Under Rule 3.3(a)(2)
Rule 3.3(a)(2) imposes a duty to disclose a material fact where disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. The facts of the instant inquiry raise two questions under this Rule: (1) does the Inquirer's silent participation in the deposition constitute assistance of a criminal or fraudulent act; and, if so, (2) is the matter about which the Inquirer has knowledge material within the meaning of the Rule?
With regard to the first issue, ABA Formal Opinion 87353 concluded that, for purposes of Rule 3.3(a)(2), failing to disclose known perjury by the client in a civil case constitutes the required assistance:
Since 3.3(a)(2) requires disclosure to the tribunal only when it is necessary to "avoid assisting" client perjury, the important question is what conduct of the lawyer would constitute such assistance. Certainly, the conduct prescribed in Rule 3.3(a)(4)-offering evidence that the lawyer knows to be false--is included. Also, a lawyer's failure to take remedial measures, including disclosure to the court, when the lawyer knows the client has given false testimony, is included. It is apparent to the Committee that as used in Rule 3.3(a)(2), the language "assisting a criminal or fraudulent act by the client" is not limited to the criminal law concepts of aiding and abetting or subornation. Rather, it seems clear that this language is intended to guide the conduct of the lawyer as an officer of the court as a prophylactic measure to protect against client perjury contaminating the judicial process. Thus, when the lawyer knows that the client has committed perjury, disclosure to the tribunal is necessary under Rule 3.3(a)(2) to avoid assisting the client's criminal act.
Despite the laudable purpose underlying the ABA Opinion, this Committee believes that such a broad view of the term assistance fails to adhere to the plain meaning of the Rule. In the view of this Committee, silence and inaction do not amount to assistance, and the conduct described by the Inquirer in this matter does not violate the terms of Rule 3.3(a)(2).
Because we recognize that this Opinion is contrary to the views of, inter alia, the ABA Formal Opinion, we believe it is appropriate to comment upon the materiality issue. Where a client has intentionally given false testimony, a lawyer must determine whether the testimony may be material in any respect with regard to the merits of the proceeding. If the Inquirer is satisfied that the evidence is not material, the duties under Rule 3.3(a)(2) do not apply. See State Bar of Michigan Standing Committee on Professional Ethics, Opinion No. RI-33 (October 17, 1989).
B. Analysis Under Rule 3.3(a)(4)
Rule 3.3(a)(4) prohibits a lawyer from offer[ing] evidence that the lawyer knows to be false, and requires the lawyer to take reasonable remedial measures if the lawyer has offered material evidence and comes to learn of its falsity.
As a threshold matter, Rule 3.3(a)(4) imposes no duty of disclosure unless the evidence in question is material to the underlying proceeding. Consequently, if the Inquirer has determined that this evidence is not material, no obligation arises under Rule 3.3(a)(4).
In the event that the Inquirer concludes that the evidence is material, the question then arises as to whether the Inquirer has offered false evidence in this case. Two ABA opinions found Rule 3.4(a) to have been implicated in situations where the lawyer had not been the one who elicited the false testimony from the client. See, e.g., 87-353 (where client in a criminal case testified falsely in response to questioning by the court during sentencing); 93-376 (where client testified at a deposition in response to questioning by opposing counsel). However, neither opinion expressly discussed the offering requirement, and this Committee is of the belief that this term does not extend to deposition testimony of the client, elicited by opposing counsel, that is not submitted to the Court in any fashion. So long as the Inquirer does not submit this deposition testimony to a tribunal for any purpose, the offering requirement of Rule 3.3(a)(4) is not triggered.
C. Other considerations
This Opinion should not be read to suggest that the Inquirer must stand idle if he concludes that the testimony is material, fraudulent or perjurious. Specifically, Rule 1.6(c)(2) permits a lawyer to reveal information to the extent that the lawyer reasonably believes it is necessary to prevent or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used. . . .1 Additionally, Rule 1.16(b)(1) permits withdrawal under certain circumstances where the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent. . . .
In the event the Inquirer concludes that corrective steps should be taken, it does not necessarily follow that disclosure is the first and only appropriate measure. As the Comment to Rule 3.3 makes clear, the duties of loyalty and confidentiality owed to the lawyer's client require exploration of options short of outright disclosure. Thus, the lawyer's first step might be to remonstrate with the client confidentially and urge him to rectify the situation. It may develop that, after consultation with the client, the lawyer will be in a position to accomplish rectification without divulging the client's wrongdoing or breaching the client's confidences, depending upon the rules of the jurisdiction and the nature of the false evidence. For example, answers to deposition questions may be capable of being supplemented or amended in such a way as to correct the record, rectify the perjury, and ensure a fair result without outright disclosure to the tribunal.
1. See also Rule 4.1(b) (a lawyer shall not knowingly . . . fail to disclose a material fact to a third person where disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client unless disclosure is prohibited by Rule 1.6).