CAN I LIE TO YOU? FALSE STATEMENTS, FAILURES TO DISCLOSE AND OTHER SINS IN COMMUNICATING WITH TRIBUNALS By: Bruce A. Campbell Campbell & LeBoeuf P.C.

Role of lawyers? Lawyers, then, owe to the courts duties of scrupulous honesty, forthrightness, and the highest degree of ethical conduct. Inherent in that high standard of conduct is compliance with both the spirit and express terms of established rules of conduct and procedure. In Re: J.B.K., 931 S.W.2d 581, 583 (Tex. App.El Paso 1996, no writ)

D.R A lawyer shall not knowingly: make a false statement of material fact or law to a tribunal fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by the entity for it to make an informed decision fail to disclose to the tribunal 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 offer or use evidence that the lawyer knows to be false

False statement of material fact Applies to a false statement to a tribunal whether or not the attorney is advocating for a client Is material if it is important to the party to whom it is made in making a decision regarding a particular transaction. Would a reasonable person attach importance to the fact and be induced to act on the information in determining his choice of actions in the transaction in question?

Knowing conduct Knowingly, Known, or Knows denotes actual knowledge of the fact in question. A persons knowledge may be inferred from the circumstances. Tex. Disciplinary R. Profl Conduct terminology Knowledge can be inferred. In Re Cohn

Tribunals Includes courts…See In re Cohn Includes administrative hearings --Weiss v. Commission for Lawyer Discipline Tribunal denotes any governmental body or official or any other person engaged in a process of resolving a particular dispute or controversy administrative agencies when engaging in adjudicatory or licensing activities as defined by applicable law or rules of practice or procedure judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers and comparable persons empowered to resolve or to recommend resolution of a particular matter

Failing to Disclose Adverse Authority The Cynical view: If you fail to disclose adverse authority: confess and try to shift the focus of the argument to another line of cases –In re Colonial Pipeline Co. Dont use cut and paste briefs --Ibarra v. State of Texas

False Evidence Upon ascertaining that material testimony or other evidence is false, the lawyer must first seek to persuade the client to correct the false testimony or to withdraw the false evidence If the persuasion is ineffective, the lawyer must take additional remedial measures

False Evidence Remedial measures: disclose the existence of the deception to the court or to the other party, if necessary to rectify the deception Rationale: the lawyer may not aid in the deception of the tribunal thereby subverting the truth-finding process which the adversary system is designed to implement

Consequences of false evidence Debarred from the case Suspended or barred from practice before the tribunal Monetary fines and sanctions…American Airlines, Inc. v. Allied Pilots Assoc. Loss of all fee$$$…In re MFLEX Corp.

Anticipated False Evidence Urge the client or other person involved not to offer false or fabricated evidence Refuse to offer it, regardless of the clients wishes Withdraw from the case. If the lawyer chooses or is not allowed to withdraw by the tribunal, the lawyer should again urge the client not to offer false testimony Advise the client of the steps the lawyer will take if such false evidence is offered

Preparing witnesses It is one thing to ask a witness to swear to facts which are knowingly false. Dont do it! It is another thing, in an arms length interview with a witness to attempt to persuade her, even aggressively, that her initial version of a certain fact is not complete or accurate. Ok! Resolution Trust Corp. v. H.R. Bum Bright

Duration of Obligation The obligation to rectify the presentation of false testimony or other evidence varies from case to case but continues as long as there is a reasonable possibility of taking corrective legal actions before a tribunal. Tex. Disciplinary R. Profl Conduct 3.03 cmt. 14.

Conclusion Scrupulous honesty, forthrightness, and the highest degree of ethical conduct will serve you well…In Re: J.B.K If you find that you have offered false evidence or testimony, engage in remedial measures Never let the perceived needs of one client compromise you ticket!