Following is the 37th post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 3 – “Advocate,” and focuses on the importance of a lawyer’s honesty when dealing any type of tribunal. The Rule of Professional Conduct, as revised, is as follows:
Rule 3.3 Candor Toward the Tribunal
(a) A lawyer shall not:
(1) knowingly 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 knowingly misquote to a tribunal the language of a book, statute, decision or other authority; 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, unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client in a proceeding before a tribunal 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 to the extent permitted by Business and Professions Code section 6068, subdivision (e) and rule 1.6.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding.
(d) In an ex parte proceeding where notice to the opposing party in the proceeding is not required or given and the opposing party is not present, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse to the position of the client.
As set forth above, Rule 3.3 of the CBA’s new RPC replaces and expands on the CBA’s previous Rule 5-200(A)-(D), which had the subtitle of “Trial Conduct.” Subdivisions (a)(1)-(3) of the new rule correspond to subdivisions (B)-(D) of the old rule, but are more complex than the previous rule’s language. In particular, Rule 3.3(a)(3) replaces “(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional …” in the old rule with a detailed warning regarding a lawyer providing evidence that he or she knows to be false.
Subdivisions (b), (c), and (d) of the new rule are new. The first of these subdivisions pertains to a lawyer who knows his client has been or is currently engaged in criminal or fraudulent conduct. The second clarifies that everything in subdivisions (a) and (b) are effective until the proceeding’s conclusion. And the last addition spells out a lawyer’s obligations to a tribunal in an ex parte proceeding.
As is the case with other revised rules in the CBA’s RPC, the corresponding rule in the American Bar Association (ABA)’s RPC – Rule 3.3(a)-(d) – is almost identical in language to CBA’s Rule 3.3(a)-(d).
Benefit: Generally speaking, greater clarity regarding a lawyer’s responsibility before any type of tribunal translates to greater protection for a client against potential legal malpractice on the part of the attorney representing them.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 22 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at 916/996-0400 or at firstname.lastname@example.org. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
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