If Attorney Adler does nothing, is he subject to discipline?
A. Yes, because Cleo had committed a fraud on the court in which the case was tried.
B. No, because Attorney Adler learned the facts from Cleo in confidence.
C. No, if disclosure by Attorney Adler could result in Cleo’s prosecution for perjury.
D. No, because the judgment is not final.
Answer:A
If Attorney Adler does nothing, is he subject to discipline?
A. Yes, because Cleo had committed a fraud on the court in which the case was tried. B. No, because Attorney Adler learned the facts from Cleo in confidence. C. No, if disclosure by Attorney Adler could result in Cleo’s prosecution for perjury. D. No, because the judgment is not final.
Explanation: Rule 3.3(a)(3) prohibits the lawyer from offering evidence that the lawyer knows to be false. Here, unlike the example above, Attorney Adler was representing Cleo when Cleo gave false evidence (the perjured testimony) to the court. Thus, Adler “offer[ed] evidence that the lawyers knows to be false.” Rule 3.3(a)(3). Under Rule 3.3(a)(3), Adler now has a duty to “take reasonable remedial measures, including if necessary, disclosure to the tribunal.” Id. When Rule 3.3 is triggered, candor to the tribunal trumps confidentiality, so “B” is incorrect. See Rule 3.3(c). There is no exception or consideration of the harm to the client as a result of the disclosure. So, “C” is incorrect. Under Rule 3.3(c), the lawyer’s obligations to the tribunal continue until the “conclusion of the proceeding.” Comment 13 explains that a proceeding has concluded when a final judgment has been affirmed on appeal or the time to appeal has expired. Here, the case is pending on appeal, so the proceeding has not concluded. Accordingly, “D” is incorrect.