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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

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Ohio Legal Ethics Narrative

III ADVOCATE

3.3 RULE 3.3 CANDOR TOWARD THE TRIBUNAL

3.3:100 Comparative Analysis of Ohio Rule

3.3:101 Model Rule Comparison

Ohio Rule 3.3 is for the most part substantively identical to MR 3.3. Differences are noted as follows:

In division (b) of the Ohio Rule, the disclosure obligation regarding a person who is engaging, will engage, or has engaged in criminal or fraudulent conduct makes express reference to the client: thus ", including the client," has been added after "person".

In division (c), after "continue" the Ohio Rule substitutes "until the issue to which the duty relates is determined by the highest tribunal that may consider the issue, or the time has expired for such determination," for "to the conclusion of the proceeding,".

3.3:102 Ohio Code Comparison

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.3(a): DR 7-102(A)(1), (4), & (5) & 7-106(B)(1).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.3(b): DR 7-102(B).

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.3(c): DR 7-106(B).

The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.3(d): None.

3.3:200 False Statements to a Tribunal

  • Primary Ohio References: Ohio Rule 3.3(a)(1)
  • Background References: ABA Model Rule 3.3(a)(1)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.49
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.49 (1996).

Ohio Rule 3.3(a)(1) contains two prohibitions. First, it prohibits a lawyer from knowingly making a false statement of law or fact to a tribunal. Second, to the extent the lawyer inadvertently makes a false statement of law or fact to a tribunal and later discovers it, the Rule requires that the lawyer correct the matter if the false statement was material. Taken together, the provisions bar a lawyer from "knowingly" making false statements to a tribunal regardless of their significance. If inadvertent falsity arises and is subsequently realized by the lawyer, the duty to cure extends only to those false statements that were "material."

Unlike former OH DR 7-102(A)(5), which deals with false statements knowingly made by a lawyer "in his representation of a client," this Rule is limited to making false statements to a tribunal. For purposes of the Rules, a "tribunal" is "a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative body, or other body acting in an adjudicative capacity." Ohio Rule 1.0(o). The term covers not only appearances before the tribunal itself, but also "ancillary proceeding[s] conducted pursuant to the tribunal's adjudicative authority, such as a deposition." Ohio Rule 3.3 cmt. [1]. Cases involving false statements to clients are discussed in section 8.4:400, and those dealing with false statements to nonclients other than a tribunal are dealt with in section 4.1:200.

As stated in Comment [2],

[t]his rule sets forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. . . . Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false.

Rule 3.3 cmt. [2]. In keeping with this duty to keep the court from being knowingly misled as to the law or facts, the duty extends beyond affirmative misrepresentations to situations "where failure to disclose is the equivalent of an affirmative misrepresentation." Ohio Rule 3.3 cmt. [3].

As recognized in Comment [13], a "practical time limit" on the obligation to rectify false statements or false evidence is required, and the limits set in Rule 3.3(c) (determination by highest court that can consider issue to which the duty relates, or expiration of time for such determination) "is a reasonably definite point for termination of the obligation." Rule 3.3 cmt. [13].

False statements to a tribunal: Examples of conduct directed to a court that violated the former disciplinary rule (OH DR 7-102(A)(5)) are numerous. The most common transgressions occurred when a lawyer forged a signature, falsified documents, or lied to a court or other tribunal. Some specific situations include a lawyer who:

  • Falsely stated to a magistrate that she had provided to the appropriate agency information sufficient to verify her client’s health-care expenses, Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222;

  • falsely stated in an affidavit filed in conjunction with a notice of appeal that he represented the appellant, when in fact he was suspended from practice at the time, Disciplinary Counsel v. Frazier, 110 Ohio St.3d 288, 2006 Ohio 4481, 853 N.E.2d 295;

  • falsely represented to bankruptcy court that the reason he had not responded to a motion for default judgment against his client was the client's failure to rehire respondent until mid-July, 2000 (the motion for default had been filed on July 5 and was granted on July 21), when in fact he had been rehired in June 2000. Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 612;

  • falsely represented to common pleas court that corporate resolutions were properly acted upon and valid. Akron Bar Ass'n v. Holder, 102 Ohio St.3d 307, 2004 Ohio 2835, 810 N.E.2d 426;

  • filed omnibus charges and affidavits of corruption and other criminal acts against an array of public officials, which charges were found to have no foundation in law or fact; respondent also lied to a judge in the course of a hearing on such claims. Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003 Ohio 4756, 796 N.E.2d 495;

  • filed (through one of his employees) falsified qualified-domestic-relations orders with domestic-relations court, after increasing his client's entitlement to 401(k) and pension benefits from the entitlement numbers submitted to him by opposing counsel, representing the ex-husband, and, on one of the QDROs, after substituting a new signature page, forging the name of opposing counsel and the ex-husband, all without informing opposing counsel of the changes or obtaining consent to place the signatures on the document. Office of Disciplinary Counsel v. Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 792 N.E.2d 1078;

  • filed with the court probate accounts that respondent knew contained false statements of fact. Stark County Bar Ass'n v. Hare, 99 Ohio St.3d 310, 2003 Ohio 3651, 791 N.E.2d 966;

  • falsely told the court that he had become involved with the father of a youth charged in a high-profile school shooting incident by sending him a condolence note, when in fact he had previously signed and faxed a solicitation letter to the father and prior to that the lawyer's employee had made solicitation telephone calls on the lawyer's behalf to the father. Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (2001) (lawyer's misconduct violated panoply of provisions in addition to OH DR 7-102(A)(5); disbarment imposed);

  • falsely represented to two courts that his client was a first-time offender, knowing the representation to be false, Cincinnati Bar Ass'n v. Nienaber, 80 Ohio St.3d 534, 687 N.E.2d 678 (1997);

  • knowingly misrepresented the date of a personal injury in a complaint in an effort to render the action timely, Cuyahoga County Bar Ass'n v. Caywood, 62 Ohio St.3d 185, 580 N.E.2d 1076 (1991) (conduct also violated OH DR 1-102(A)(4), OH DR 6-101(A)(3), and OH DR 7-101(A)(2));

See also Disciplinary Counsel v. Beeler, 105 Ohio St.3d 188, 2005 Ohio 1143, 824 N.E.2d 78 (DR 7-102(A)(3) -- knowingly concealing what obligated to reveal -- invoked, instead of 7-102(A)(5); "by filing the improperly attested wills and deeds with the probate court, respondent misrepresented facts to that tribunal, an action which this court does not look upon lightly." Id. at para. 29.).  Accord Disciplinary Counsel v. Carlson, 111 Ohio St.3d 281, 2006 Ohio 5707, 855 N.E.2d 1218 (respondent filed final estate accounting containing misleading nondisclosure; 7-102(A)(3) violated).

Misconduct that violated OH DR 7-102(A)(5) could also violate OH DR 6-101(A)(3) — "A lawyer shall not: . . . [n]eglect a legal matter entrusted to him." When, as in Caywood supra, a lawyer knowingly misrepresents the date of injury in a complaint in an attempt to render a client's action timely, the lawyer has violated both provisions.

In a 1994 case, a court-appointed lawyer for an indigent criminal defendant was found to have violated 7-102(A)(5) by submitting a travel-expense voucher for reimbursement that included personal expenses as well as properly claimed business expenses. Cincinnati Bar Ass'n v. Nienaber, 68 Ohio St.3d 459, 628 N.E.2d 1340 (1994). The Board of Commissioners recommended a public reprimand, perhaps because the lawyer admitted the error, claimed it was a mistake, and made full restitution. Unswayed, the Ohio Supreme Court ordered a six-month suspension.

The lawyer's misconduct did not need to be as severe as that depicted in the foregoing examples to violate the disciplinary rule, however. Filing an affidavit of the lawyer to support a summary-judgment motion that was based on hearsay, rather than personal knowledge as required, was found to violate OH DR 7-102(A)(5). By filing an affidavit based on hearsay, the lawyer was making a false statement of fact that the document was based on personal knowledge when it was not. Cleveland Bar Ass'n Op. 128 (July 29, 1976).

Lying to the court also was prohibited under former OHCPR provisions other than (or in addition to) OH DR 7-102(A)(5) — most often OH DR 1-102(A)(4), which prohibited engaging in "conduct involving dishonesty, fraud, deceit, or misrepresentation" (now Rule 8.4(c)). The DR 1-102(A)(4) cases in this category include: Herman, 99 Ohio St.3d 362, 2003 Ohio 3932, 792 N.E.2d 1078, discussed this section supra; Cincinnati Bar Ass'n v. Banks, 94 Ohio St.3d 428, 763 N.E.2d 1166 (2002) (four separate occasions during respondent's felony trial when he gave testimony that he knew to be materially false); Office of Disciplinary Counsel v. Allison, 90 Ohio St.3d 296, 737 N.E.2d 955 (2000) (misrepresenting to probate court in report of estate distributions that lawyer had received only $1,000 in attorney fees when in fact he had persuaded fiduciary of estate to provide him with checks totalling additional $6,000; two-year suspension with second year stayed); Columbus Bar Ass'n v. Connors, 89 Ohio St.3d 370, 731 N.E.2d 1127 (2000) (falsely representing to trial court that his suspension had been lifted and that he had been reinstated by the Supreme Court); see Columbus Bar Ass'n v. Elsass, 86 Ohio St.3d 195, 713 N.E.2d 421 (1999) (while under suspension, preparing and filing with court motions and other documents that purported to be pro se papers of client; indefinite suspension imposed).

Sanctions for false statements to a tribunal: In its opinion in Lake County Bar Ass'n v. Speros, 73 Ohio St.3d 101, 652 N.E.2d 681 (1995), the Ohio Supreme Court spoke at length about the appropriate sanction for OH DR 7-102(A)(5) and OH DR 1-102(A)(4) violations, which were often jointly charged under the Code. In Speros, an attorney, falsely blaming clerical error rather than his own inattention, filed an affidavit in support of a motion to reinstate an appeal in which he lied as to the reason for his failure to file a timely brief and forged the notary's signature on the affidavit. After finding that this conduct violated OH DR 1-102(A)(4), as conduct involving dishonesty or misrepresentation, and OH DR 7-102(A)(5), as conduct involving the knowing use of a false statement of fact in representation of a client, the Court considered the appropriate sanction. While the Board recommended a six-month suspension, respondent argued for a public reprimand and cited numerous cases in which the Court had issued a public reprimand for attorney falsehoods. In response, the Court first noted that its earlier treatment may have been too lenient:

Respondent calls to our attention several other cases in which we issued only public reprimands for an attorney's deception of a client, and these cases may imply that we view this misconduct as a minor transgression. We do not. Dishonesty toward a client, whose interests are the attorney's duty to protect, is reprehensible. And, as we continue to see such violations of DR 1-102(A)(4), we recognize that this misconduct may hereafter require more severe discipline than we have previously imposed.

Id. at 104, 652 N.E.2d at 683. The Court went on in Speros to distinguish the case before it from those instances in which a public reprimand has been deemed sufficient:

But, distressed as we are by any attorney's dishonesty toward a client, we find greater evil in an attorney's deliberate attempt to deceive a court while under oath. That attorney perpetrates a fraud upon the judiciary and a corresponding, surreptitious fraud upon his or her unsuspecting client. Cf. Disciplinary Counsel v. Heffernan, (1991), 58 Ohio St.3d 260, 261, 569 N.E.2d 1027, 1028 (Failure to reveal a client's fraud upon a court is "a serious breach of duty for which a public reprimand is not an adequate sanction.") This is the misconduct with which we are faced here, and it exits in none of the cases respondent cites to establish a comparable violation of DR 1-102(A)(4).

Id. As the remainder of the opinion reemphasizes, while any misrepresentation by a lawyer is significant, those made under oath and directed to a court while representing a client are considered particularly odious. Id. at 104-05, 652 N.E.2d 683. Rejecting respondent's argument that a public reprimand was sufficient sanction, the Court suspended him for six months. Accord Cleveland Bar Ass'n v. Herzog, 87 Ohio St.3d 215, 217, 718 N.E.2d 1274, 1275 (1999) ("We will not allow attorneys who lie to courts to continue practicing law without interruption."); Office of Disciplinary Counsel v. Greene, 74 Ohio St.3d 13, 13, 655 N.E.2d 1299, 1300 (1995) (syllabus) ("When a lawyer intentionally misrepresents a crucial fact to a court in order to effect a desired result to benefit a party, the lawyer will be suspended from the practice of law in Ohio for an appropriate period of time.").

One rather bizarre attempt at "sanctioning" a lawyer for what the judge apparently thought was a false statement to the court occurred in the trial-court proceedings underlying the case of In re Conway, No. 79615, 2001 Ohio App. LEXIS 5531 (Cuyahoga Dec. 7, 2001) (reversing finding of indirect criminal contempt based on alleged intemperate remarks by lawyer to judge's law clerk). In the underlying matter, because she had concluded that lawyer Conway's representation that he was a former Captain in the Marines was false, the trial judge held a hearing in open court; the hearing included "testimony" from former Marines invited to the hearing by the judge, the judge's discourse on Marine Corps history, and her concluding remarks:

"These are Marines, Mr. Conway. Your false representations only serve to denigrate these Marines present who are United States Marines and who have fought for rights and freedom and to keep our honor clean and who are proud to claim the title of United States Marine. You should be ashamed, Mr. Conway, and based on all of this, this information will be sent to the Ohio Supreme Court for disciplinary action for your lying to this Court, and misrepresenting yourself."

Id. at *6-7. Unfortunately, the judge had apparently obtained erroneous information by telephone from the Department of Defense concerning Mr. Conway's military record. Mr. Conway was a retired U.S. Marine Corps Captain.

3.3:300 Disclosing Adverse Legal Authority

  • Primary Ohio References: Ohio Rule 3.3(a)(2)
  • Background References: ABA Model Rule 3.3(a)(2)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.100
  • Commentary: ABA/BNA § 4:303, ALI-LGL § 111, Wolfram § 12.8

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.100 (1996).

Ohio Rule 3.3(a)(2), which mirrors former OH DR 7-106(B)(1), requires a lawyer to disclose adverse legal authority to the tribunal, but only in limited circumstances. Disclosure is required only if the legal authority emanates from the controlling jurisdiction and is known by the lawyer to be "directly adverse" to the position of counsel's client and has not been disclosed by opposing counsel. Thus, adverse cases from other court systems need not be disclosed, because they are not from the controlling jurisdiction. Moreover, cases from the controlling jurisdiction that are merely relevant to the case at hand are not subject to the mandatory-disclosure requirement; direct adversity to the client's position is necessary. Even then, the failure to disclose is not a violation if the authority has already been disclosed to the tribunal by the opposing counsel. Finally, this duty, like the others set forth in the Rule, continues until determination of the issue by the highest tribunal or expiration of time for such determination. Rule 3.3(c).

At a minimum, the phrase "legal authority in the controlling jurisdiction" means all case law, statutes, and other legal authority that the court is required to consider as a matter of law. In Ohio, this includes, of course, precedent from the U.S. and Ohio Supreme Courts and also all officially reported court of appeals opinions issued prior to May 1, 2002, which opinions, arguably, are still deemed "controlling authority for all purposes in the judicial district in which they were rendered" unless subsequently reversed or modified. (Unofficially reported and unpublished court of appeals opinions issued prior to the May 1 date are (were?) considered "persuasive authority" only.) The uncertainty expressed in the preceding two sentences results from the fact that on February 5, 2002, the Ohio Supreme Court adopted new Supreme Court Rules for the Reporting of Opinions (SCt Rep R), which became effective on May 1, 2002. See 94 Ohio St.3d XCIV-CV (2002). But the impact of the new rules on previously issued court of appeals opinions is less than crystal clear. On the one hand, the new rules state that "[a]ll court of appeals opinions issued after the effective date [the intent here was probably "on or after the effective date"] may be cited as legal authority and weighted as deemed appropriate by the courts." SCt Rep R 4(B). But SCt Rep R 4(A) states that the "controlling/persuasive" dichotomy of the old rules (pursuant to which the opinion was "controlling" only if officially reported) is "abolished." Is it "abolished" with respect to pre-May 1 opinions, as well as for those issued on or after May 1? If so, SCt Rep R 4(B) probably should have read: "After the effective date of these rules, all court of appeals opinions, including those issued before May 1, may be cited," etc. Since it does not, we will have to wait for the courts to interpret Rule 4, given the tension between Rule 4(B)'s "opinions issued after the effective date" and the "abolish[ment]" of the "controlling/persuasive" distinction in Rule 4(A). As of this writing, two courts have touched on this issue and have given differing answers. One has read SCt Rep R 4(B)'s "abolished" language as trumping the controlling/persuasive distinction for cases decided prior to the amendment. See Kohlbrand v. Ranieri, 159 Ohio App.3d 140, 2005 Ohio 295, 823 N.E.2d 76, at para. 23 (Hamilton; Painter, J.) ("We may consider Zilka [a Lorain County Court of Appeals case decided in 2000] and give it the weight that we consider appropriate [citing R 4(B)]. And we consider it inappropriate to give Zilka any weight at all."). In contrast, Cleveland v. Carpenter, 126 Ohio Misc.2d 77, 2003 Ohio 7349, 803 N.E.2d 871 (Clev. Mun.), presumably relying on the pre-5/1/02 distinction between officially reported opinions and all others, states that "an unpublished [Cuyahoga County appellate] opinion issued before May 1, 2002 . . . . is not controlling case law." Id. at para. 23 (bracketed material added).

A unique aspect of Ohio law that is also affected by the new Reporting Rules is the "syllabus rule." Pursuant to the syllabus rule, the controlling points of law of an Ohio Supreme Court opinion are set forth in the syllabus, not the text, of the opinion (other than in a per curiam opinion, where the text states the law). Pursuant to the new rules, however, both the syllabus and the text (including footnotes) state the law of a Supreme Court opinion. See SCt Rep R 1(B)(1). Once again, however, the impact of the rule on pre-May 1 Supreme Court opinions is unclear -- is the law now stated in the syllabus and the text of all Supreme Court opinions, or just those issued on or after May 1? (The Ohio Supreme Court Clerk's office has informally advised that the syllabus rule will continue to apply to all pre-May 1 Supreme Court opinions (which advice lends support to the view that the abolishment of the "controlling/persuasive" distinction, discussed above, is not abolished for pre-May 1, 2002 court of appeals opinions).)

It should also be noted that if there is "disharmony" between the syllabus and the text of an opinion, the syllabus controls. SCt Rep R 1(B)(2). For a case applying R 1(B)(2), see First Bank of Marietta v. Roslovic, 2004 Ohio 2717, at para. 50 (Franklin).

(State ex rel. Dillery v. Icsman, 92 Ohio St.3d 312, 750 N.E.2d 156 (2001), raises an interesting question concerning the effect of a per curiam opinion. In Icsman (decided before the 5/1/2002 amendments), one Justice (Lundberg Stratton) "concur[red]." Four other justices "concur[red] in judgment." The two other justices, in an opinion concurring and dissenting in part, agreed with the per curiam opinion on one of the two issues decided. By our count, that makes a total of three justices endorsing the per curiam opinion, at least in part. Query whether such an opinion has precedential value.)

Other significant changes in the 2002 Reporting Rules include posting on the Supreme Court's web site of all court of appeals opinions and those trial court opinions selected for print publication. SCt Rep R 3(B), 10(A). Effective May 1, 2002, citation to opinions should give both the Official Reports citation and the website citation where both are available. SCt Rep R 9(B). As the "revised" Revisions to the Manual of Citations (96 Ohio St.3d, at CXLIX-CLVII (2002) (effective July 12, 2002 and superseding the revisions effective May 1, 2002)) make clear, this includes only opinions decided on or after May 1, 2002: "The 'old style' of citation is to be used for cases decided before May 1, 2002." Id. at CLI. Opinions decided on or after May 1, 2002 that are not print-published in the Official Reports must also utilize the website citation. Id. (The July 12, 2002 Revisions are also available at http://www.sconet.state.oh.us/ROD/pdf/Rev_Manual_Cit_02.pdf) Finally, pinpoint cites under the new system will be to the numbered paragraph in which the material appears, rather than to the page on which it appears. SCt Rep R 1(D). E.g., A v. B, 95 Ohio St.3d 1, 2002 Ohio 600, 765 N.E.2d 320, at ¶ 10.

The admonition in former OH EC 7-23, that lawyers in an adversary system "will present and argue the existing law in the light most favorable to [their] client," recognized that lawyers have some leeway in construing precedent. If a case is susceptible to more than one good-faith interpretation, one of which is directly adverse to the client's position and another of which is not, a lawyer might choose the favorable interpretation and remain silent about the precedent. Whether this is tactically the best approach is a separate matter. See Charles W. Wolfram, Modern Legal Ethics § 12.8, at 682 (1986) (effective advocacy usually requires attacking adverse precedent head on).

The purpose of Rule 3.3(a)(2) is to ensure an equitable and accurate determination of the legal issues presented in the matter. As stated in Comment [4], the "underlying concept is that legal argument is a discussion seeking to determine the legal premise properly applicable to the case." Rule 3.3 cmt. [4]. To achieve this, a tribunal must be aware of all precedents in its jurisdiction that are directly pertinent and applicable to the case. As officers of the court, attorneys have a duty to make sure that the court is properly informed. "Legal argument based on a knowingly false representation of law constitutes dishonesty toward the tribunal." Id. Having avoided such conduct, however, attorneys are expected to present the law in a light most favorable to their client's case, and are free to challenge the soundness of any directly adverse authority.

Of course, even in citing favorable precedent (whether or not from a "controlling" jurisdiction), a lawyer must take care that the decision has not been reversed. A lack of such care occurred in Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516 (6th Cir. 1997), where counsel for the appellant cited a District of Utah case in support of its position. The Sixth Circuit was not pleased. In a footnote, the court pointed out that the case relied on had been reversed by the Tenth Circuit more than a year prior to the filing of appellant's brief. In assessing double costs against appellant pursuant to 28 USC § 1912 for this gaffe, the Sixth Circuit found that "[t]his behavior would seem to violate Ohio Disciplinary Rules 1-102(A)(4) & (5) and 7-102(A)(5)." 103 F.3d at 520 n.2. OH DR 7-106(B)(1) was not mentioned.

Finally, while not an Ohio case, Precision Specialty Metals, Inc. v. United States, 315 F.3d 1346 (Fed. Cir. 2003), serves as a reminder that playing fast and loose with precedent is not limited to failure to disclose the existence of adverse authority; it also encompasses misciting that authority, by, inter alia, rewriting and deleting material unfavorable to your argument. Thus, in Precision, Mikki Walser, a government lawyer, sought reconsideration of the Court of International Trade's grant of summary judgment to Precision, when the government had been ordered to file a response to the motion "forthwith" and she had filed its response twelve days later. In the motion for reconsideration, Walser argued that twelve days complied with the "forthwith" command because there was no uniform definition of the term. In support, she relied on quotations from several opinions, but in the process misstated them by making material omissions and otherwise doctoring the quoted text in a misleading way. (I.e., failing to show that it was she and not the court that had supplied the emphasis to one of her quotes.) See id., at 1348-49. The lower court found counsel in violation of CIT Rule 11 and formally reprimanded her. Id. at 1350. In affirming, the Federal Circuit's quotation of the language of the lower court is instructive: Walser

"either wilfully or through an unacceptable level of negligence, and the use of selective quotations and direct misquotation, concealed a Supreme Court case of which she was or should have been aware. Counsel's argument that the case was inopposite or dicta is simply irrelevant to this analysis; her misconduct lies not in deciding the case was irrelevant but in attempting to conceal it from the court and opposing counsel. That, simply put, is a violation of any attorney's fundamental duty to be candid and scrupulously accurate." (emphasis in original).

The court concluded that Walser violated Rule 11 because she "signed a brief before this court which omitted directly relevant language from what was represented as precedential authority, which effectively changed the meaning of at least one quotation, and which intentionally or negligently misled the court."

Id. at 1355.

Perhaps the most unusual thing about the Precision case is why on earth the Department of Justice thought it wise to file an amicus brief seeking to defend such behavior. The court of appeals found DOJ's brief "troubling." Id. at 1358.

3.3:400 Offering False Evidence

  • Primary Ohio References: Ohio Rule 3.3(a)(3)
  • Background References: ABA Model Rule 3.3(a)(3)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.48
  • Commentary: ABA/BNA § 61:304; ALI-LGL §§ 115, 117, 120; Wolfram §§ 12.4.6, 12.5

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.48 (1996).

Ohio Rule 3.3(a)(3) provides in pertinent part that a lawyer shall not "offer evidence that the lawyer knows to be false." The Rule, like the predecessor disciplinary rule (OH DR 7-102(A)(4)), applies regardless of whether the lawyer, the client, or a third party is the source of the perjured testimony or false evidence. As stated in Rule 3.3 cmt. [8], "the lawyer cannot ignore an obvious falsehood." Absent an "obvious falsehood," "the lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client." Id. Should the lawyer not know that the evidence is false but only "reasonably believe[]" that it is, the lawyer (except with respect to the testimony of a defendant in a criminal matter) is allowed but not required to refuse to offer the evidence. Ohio Rule 3.3(a)(3) & cmt.[8]. See section 3.3:600.

If the lawyer knows a client intends to testify falsely or wants the attorney to introduce false evidence, the lawyer should first seek to persuade the client to the contrary. But if persuasion fails, the lawyer must refuse to introduce that evidence. Ohio Rule 3.3 cmt. [6]. If the false information involves only a portion of a witness's expected testimony, the lawyer may put the witness on the stand for those other points, but may not elicit or permit the witness to give testimony the lawyer knows to be false. Id. For a discussion of the lawyer's duty if she discovers that material false evidence was presented, see section 3.3:500.

Under the former OHCPR, cases sanctioning a lawyer for offering false evidence include Cleveland Bar Ass’n v. Mitchell, 118 Ohio St.3d 98, 2008 Ohio 1822, 886 N.E.2d 222 (advancing dubious and uncorroborated evidence supposedly supporting her client’s claim to Medicaid reimbursement for health-care expenses violated DR 7-102(A)(4)); Stark County Bar Ass'n v. Hare, 99 Ohio St.3d 310, 2003 Ohio 3651, 791 N.E.2d 966 (using probate accounts that respondent knew to be false; this and many other violations resulted in disbarment); Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (2001) (submitting on behalf of clients false and forged affidavit and letter; for this violation of 7-102(A)(4) and a myriad of other violations, respondent was disbarred); Medina County Bar Ass'n v. Hendricks, 68 Ohio St.3d 566, 629 N.E.2d 429 (1994) (lawyer sanctioned under OH DR 7-102(A)(4) for having perjured herself in court proceeding and deposition); Stark County Bar Ass'n v. Miller, 44 Ohio St.3d 134, 541 N.E.2d 607 (1989) (at beneficiary's request, lawyer destroyed valid will of deceased and offered for probate an earlier, revoked will; violation of OH DR 7-102). See Columbus Bar Ass'n v. Cooke, 111 Ohio St.3d 290, 2006 Ohio 5709, 855 N.E.2d 1226 (respondent violated DR 7-102(A)(4) in remaining silent when client testified falsely in response to trustee's question at bankruptcy creditor's meeting; 7-102(A)(3) also violated). Compare Office of Disciplinary Counsel v. Allen, 94 Ohio St.3d 129, 760 N.E.2d 820 (2002) (knowingly dictating for client's signature false affidavit; lawyer subsequently convicted of perjury and sanctioned under OH DR 1-102(A)(3)-(5) and 7-102(A)(7); for whatever reason, OH DR 7-102(A)(4) violation not charged); accord Office of Disciplinary Counsel v. Camera, 68 Ohio St.3d 478, 628 N.E.2d 1353 (1994) (sanctions imposed under OH DR 1-102(A)(4), 7-102(A)(5), and 7-102(A)(7), but no charge of OH DR 7-102(A)(4) violation). See also State v. Tolliver, No. 90 AP-1130, 1991 Ohio App. LEXIS 1611 (Franklin Apr. 9, 1991), where the Tenth District Court of Appeals noted that if a lawyer were to examine a witness that the lawyer believed would commit perjury and thereby knowingly elicit false testimony, the lawyer's conduct would violate the disciplinary rules.

Other of the Rules of Professional Conduct also bear on the obligation not to offer false testimony. If the lawyer knows that a witness intends to offer false testimony and, through direct or cross-examination, the lawyer permits the witness to do so, this conduct can be seen as — in addition to knowingly offering false testimony — knowingly making a false statement of fact, Rule 3.3(a)(1) (see section 3.3:200), participating in the creation of false evidence, Rule 3.4(b) (see section 3.4:300), and, if the witness is the lawyer's client, assisting the client in illegal or fraudulent conduct. Rule 1.2(d) (see section 1.2:600). If the lawyer learns of the perjury after the fact, the lawyer still has a duty to cure the problem, and the extent of that duty depends upon what reasonable measures are needed to remedy the situation, including, if necessary, disclosure to the tribunal. Ohio Rule 3.3(a)(3). See section 3.3:500. The lawyer's knowing use of the perjured testimony once on the record, by alluding to it in closing argument for example, is impermissible as well. Rule 3.3(a)(1). If it is impossible to continue in the representation without making use of the perjured testimony, withdrawal is required. Ohio Rule 1.16(a)(1). See section 1.16:230.

With regard to withdrawal, note State v. Trapp, 52 Ohio App.2d 189, 368 N.E.2d 1278 (Hamilton 1977), in which the First District Court of Appeals held that the trial court erred in refusing to allow an attorney, George Clark, to withdraw when he knew that his continued representation would violate a disciplinary rule. In Trapp, Clark was aware that his client's alibi defense would require using perjured or false evidence, a practice clearly prohibited under the former OHCPR. The court of appeals made clear that Clark had "a duty to withdraw" under the circumstances and that the trial court erred in not allowing him to do so.  Id. at 194, 368 N.E.2d at 1282. The Board of Commissioners on Grievances and Discipline, also addressing this provision, found withdrawal mandatory where a client who offered fabricated evidence refused to reveal the fraud after the lawyer had attempted to persuade him to do so. Bd. of Comm'rs on Grievance & Discipline Op. 90-07, 1990 Ohio Griev. Discip. LEXIS 14 (Apr. 20, 1990).

To the extent the perjury problem arises in the context of criminal-defense representation, the lawyer's conduct may implicate the client's Sixth Amendment right to effective assistance of counsel. While some open questions arguably remain, the tenor of the U.S. Supreme Court's most significant opinion in this area, Nix v. Whiteside, 475 U.S. 157 (1986), strongly suggests that the lawyer can follow these ethical precepts without fear of trampling on an accused's Sixth Amendment rights. See ABA Annotated Model Rules of Professional Conduct 317 (6th ed. 2007) (commentary). Compare Monroe H. Freedman, Understanding Lawyers' Ethics 134 (1990) (Nix decides only that Sixth Amendment is not violated where lawyer threatens to withdraw and to expose client perjury in attempt to dissuade client from giving perjured testimony), with 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 29.15, at 29-30 (3d ed. Supp. 2007) (after Nix "it is now settled that the Sixth Amendment is not violated if a lawyer interdicts or discloses a client's perjury").

Ohio case law relying on Nix bears out the Hazard and Hodes conclusion.  State v. Freeman, No. 64531, 1994 Ohio App. LEXIS 887 (Cuyahoga Mar. 10, 1994) (lawyer's disclosure of potential client perjury to judge in chambers and refusal to recap false testimony in closing argument or to request jury instruction on defense based on false testimony did not violate defendant's Sixth Amendment rights); State v. Tolliver, No. 90 AP-1130, 1991 Ohio App. LEXIS 1611 (Franklin Apr. 9, 1991) (defendant's Sixth Amendment rights were not violated where lawyer indicated to court belief that client would give perjured testimony and, at court's direction, the client testified without assistance of counsel); State v. Rembert, No. 55654, 1989 Ohio App. LEXIS 5100 (Cuyahoga Oct. 19, 1989) (refusal to call alibi witnesses that counsel believed would perjure themselves did not violate Sixth Amendment).

Rule 3.3(a)(3), with its focus on offering false evidence, seems directed primarily to evidentiary, trial-type proceedings. Under the OHCPR, OH DR 7-102(A)(4), although similarly focused, was in practice not so limited. Misrepresenting the value of a decedent's savings account on an Ohio estate tax return, for example, was found to violate this provision.  Toledo Bar Ass'n v. Wroblewski, 32 Ohio St.3d 162, 512 N.E.2d 978 (1987). Similarly, a lawyer who executed a release in his client's name without authorization from his client and endorsed his client's settlement checks with a forged signature also violated OH DR 7-102(A)(4).  Office of Disciplinary Counsel v. Russo, 21 Ohio St.3d 15, 487 N.E.2d 296 (1986). It remains to be seen whether this expansive reading will continue under Rule 3.3(a)(3).

Knowing use of false testimony also may lead to the overturning of a verdict in both civil (see OH Civ R 59(A)(2) and 60(B)(3)) and criminal actions (see OH Crim R 33), and may subject the lawyer to criminal sanctions. See ORC 2921.12(A)(2) (making it a crime to "[m]ake, present, or use any record, document, or thing, knowing it to be false and with purpose to mislead a public official" in a proceeding); ORC 2921.13 (falsification); ORC 2921.32(A)(5) (obstructing justice through the communication of false information).

3.3:410 False Evidence in Civil Proceedings

See section 3.3:400.

3.3:420 False Evidence in Criminal Proceedings

See section 3.3:400.

3.3:430 Offering a Witness an Improper Inducement

Rule 3.3 is concerned with "Candor Toward the Tribunal," while Rule 3.4 is directed to "Fairness to Opposing Party and Counsel." These Rules expressly prohibit the lawyer from offering false evidence and from falsifying evidence, but only 3.4 expressly deals with offering a witness a prohibited inducement. Nevertheless, if a lawyer in fairness to opposing parties and counsel under Ohio Rule 3.4 cannot "buy" testimony, true or false, then surely it follows that a lawyer can do no such thing consistent with his or her obligation of candor toward the court under Rule 3.3. This point is made with respect to the Model Rules in Laws. Man. on Prof. Conduct (ABA/BNA) § 61:714 (1997), where, in addition to emphasizing that "[i]n its most dramatic application, Rule 3.4(b)'s prohibition against counseling falsehoods bars a lawyer from suborning perjury by intentionally inducing a witness to give false testimony," it is further noted that the MR 3.4(b) duty to opposing party and counsel, prohibiting counseling or assisting false testimony, "compliments the lawyer's corresponding duty to the tribunal under Rule 3.3." Id. Accord 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 30.6, at 30-9 (3d ed. 2001) ("Model Rule 3.4(b) repeats a few obvious prohibitions from Rule 3.3 and reinforces Rule 3.4(a). Its placement in Rule 3.4 rather than Rule 3.3 merely confirms that the duty to avoid falsification runs not only to the tribunal but to opposing parties and counsel as well").

Given that a lawyer's improper inducement of a witness to give false testimony is a violation of the duty of candor to the tribunal, as well as a breach of the duty of fairness to the opposing party and counsel, the material on inducement found at section 3.4:310 of the treatise is equally applicable here.

3.3:440 Interviewing and Preparing Witnesses

The Restatement is instructive with respect to the general ethical responsibilities regarding witness interviews and witness preparation. 2 Restatement (Third) of the Law Governing Lawyers § 116 cmt. b (2000) contains a useful primer with respect to "litigation practice uniformly followed in the United States" on these matters. Id. at 205. While no Ohio ethics authority directly on point was found (other than that referenced concerning improper inducement in sections 3.3:430 and 3.4:310), there is no reason to believe that this check-list is not fully operative as a part of Ohio practice. The touchstone here, in terms of witness preparation (as well as witness interviews), is "invit[ing] the witness to provide truthful testimony favorable to the lawyer's client," as opposed to "assist[ing] the witness to testify falsely as to a material fact." Id. at 206.

Ohio criminal cases containing allegations of improper "coaching" of witnesses by the prosecution are generally consistent with this position. Thus, if the prosecution's preparation is consistent with counseling the witness to testify truthfully, efforts to premise exclusion of evidence, a mistrial, or reversal of a conviction on such conduct have been unavailing. See, e.g., State v. Henness, 79 Ohio St.3d 53, 679 N.E.2d 686 (1997) (no reversible error where prior to cross-examination prosecutors told witness defense counsel would ask about her prior record and gave witness opportunity to review record so that she could "'intelligently answer his questions',"  id. at 60, 679 N.E.2d at 693); State v. McCoy, No. 99 AP-1048, 2000 Ohio App. LEXIS 4035 (Franklin Sept. 7, 2000) (rejecting defendant's claim of error based on prosecutor allegedly telling witness what to say prior to taking stand; no allegation that prosecutor asked witness to testify untruthfully, but merely that he reviewed her anticipated testimony with her and thus "prepared the witness in a permissible manner," id. at *5); State v. Hill, Nos. 3720, 3745, 1989 Ohio App. LEXIS 4462 (Trumbull Nov. 27, 1989) (no evidence other than that state "coached" witness to tell the truth; no prejudicial error), aff'd, 64 Ohio St.3d 313, 595 N.E.2d 884 (1992); State v. Kent, Nos. C-850305-C-850308, 1986 Ohio App. LEXIS 5716 (Hamilton Feb. 26, 1986) (assignment of error, based on prosecutor's telephone conversation during recess with state's expert witness while separation-of-witnesses order in effect, overruled where defendant's attorney unable to demonstrate any prejudice to his client and where during cross-examination attorney asked no questions as to what information expert had received in conversation with prosecutor). This result has been held to follow even where there is a "flagrant violation" of a court order prohibiting such contact, so long as it cannot be said as a result that defense counsel was denied the opportunity for full cross-examination or that defendant was materially prejudiced.  State v. Prater, 13 Ohio App.3d 98, 101, 468 N.E.2d 356, 360 (Wood 1983). This portion of the Prater opinion was disavowed by the two concurring judges, who wondered why the assignment of error was not well taken if, as the judge writing for the court states, the prosecutor's conduct was in fact a "flagrant violation of the court's effort to afford defense counsel a fair opportunity for effective cross-examination." Id. The concurring judges rejected the assignment of error on the different ground that the trial judge was in the best position to determine whether the conduct did interfere with the right of effective cross-examination and he had concluded that it did not.

The general rule permitting truthful witness preparation is a two-way street: when defense counsel consulted with defendant during an overnight recess prior to his testifying, the court held that there was a right to do so but further held that the prosecutor had the right to cross-examine defendant on the conversation and to comment on it during closing argument. State v. McKinnon, No. 90- CA-1744, 1992 Ohio App. LEXIS 3124 (Ross June 10, 1992) (citing and quoting Geders v. United States, 425 U.S. 80, 89-90 (1976)).

For an instance in which the witness-coaching issue was raised in the civil context, without determination of the merits of the issue, see Abner v. Elliott, No. CA98-02-038, 1998 Ohio App. LEXIS 3348 (Butler July 20, 1998), aff'd, 85 Ohio St.3d 11, 706 N.E.2d 765 (1999). In Abner the relators sought a writ of prohibition against the trial judge, who had imposed sanctions premised on the refusal of plaintiffs' counsel to abide by discovery orders arising out of allegations of witness coaching. Finding that the lower court's action was not in excess of its jurisdiction -- the only issue before it on writ of prohibition -- the appellate court denied the writ and granted the respondent judge's motion to dismiss; with respect to the correctness of the trial court's underlying rulings, the court merely noted that such issues were not before it on prohibition and were matters to be decided on appeal, a position with which the Supreme Court agreed (along with a number of other reasons why prohibition did not lie) in affirming the court of appeals.

3.3:500 Remedial Measures Necessary to Correct False Evidence

  • Primary Ohio References: Ohio Rule 3.3(a)(3)
  • Background References: ABA Model Rule 3.3(a)(3)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.53-7.55
  • Commentary: ABA/BNA §§ 61.401 et seq.; ALI-LGL §§ 66-67; Wolfram §§ 12.5-12.6, 13.3.6

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.53-7.55 (1996).

In pertinent part, Ohio Rule 3.3(a)(3) provides that

[i]f 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 measures to remedy the situation, including, if necessary, disclosure to the tribunal.

Comment [10] elaborates:

In such situations or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. In such situations, the advocate's proper course is to remonstrate with the client confidentially, advise the client of the lawyer's duty of candor to the tribunal, and seek the client's cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action including making such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done.

Rule 3.3 cmt. [10]. See also Rule 1.6(c) & cmt.[15] and Rule 3.3 cmt. [11].

Rule 3.3(a)(3) sets up, as a threshold requirement, that the lawyer must "come to know" of the falsity of the evidence. The mere possibility, or even probability, that a client or witness called by the lawyer has offered false material evidence is insufficient to require the lawyer to act under this provision. But see Rule 1.0(g) ("A person's knowledge may be inferred from circumstances.")

Even if the lawyer "knows" the evidence is false, the duty to act arises only if the evidence is "material."

Finally, the Rule imposes a duty on the lawyer only when the client or the lawyer's witness "has" offered material evidence known by the lawyer to be false. Knowledge that the client or witness plans to testify falsely does not trigger this provision, although it well may implicate other Rules. See, e.g., Rule 3.3(b).

Given the clear language of the Rule, there seems little doubt that a lawyer has the duty to reveal a client's false evidence to the affected tribunal, if other reasonable means, including attempts to persuade the client to rectify the situation, have failed. Accord Cleveland Bar Ass'n Op. 135 (Oct. 27, 1978) (opining that principle of confidentiality does not trump duty to disclose under former OH 7-102(B)(1); where client gives deposition testimony that the lawyer knows to be false, the lawyer should recess the deposition and call upon the client to rectify the false evidence immediately; failure to do so may be considered assisting fraudulent conduct in violation of former OH DR 7-102(A)(7)). Even then, however, disclosure should be made in a manner that protects client confidences as much as possible.

Other cases under the former OHCPR in which the Court sanctioned lawyers for failing to reveal known false evidence include Office of Disciplinary Counsel v. Taylor, 78 Ohio St.3d 312, 677 N.E.2d 1188 (1997) (client, as in Heffernan, discussed below, misrepresented his identity before court), and Lake County Bar Ass'n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985) (client testifying falsely about her knowledge as to existence and whereabouts of marital asset in domestic relations proceeding).

The facts of one former OHCPR case raise an interesting question as to how the timing provisions of Rule 3.3(c) would apply to the 3.3(a)(3) obligation to material evidence that the lawyer comes to know is false. Office of Disciplinary Counsel v. Heffernan, 58 Ohio St.3d 260, 569 N.E.2d 1027 (1991). Heffernan disciplined an attorney who failed to disclose a false statement previously made by his client in court. The lawyer's client pretended to be his brother at the time of his traffic court hearing to escape the ramifications of his own bad-driving record. Several months after the hearing, his lawyer learned of the perjury and confronted his client to rectify it, but, when the client refused to do so, the lawyer failed to disclose the matter to the court. The Supreme Court sanctioned the attorney for violating former OH DR 7-102(B)(1).

Is the result different under the new Rule? In all probability it is, and Comment [13] adds weight to that conclusion by noting that "[d]ivision (c) modifies the rule set forth in [Heffernan] to the extent that Heffernan imposed an obligation to disclose false evidence or statements that is unlimited in time." Rule 3.3 cmt. [13]. We raise one question. Rule 3.3(c) states that the duty to disclose continues "until the issue to which the duty relates is determined by the highest tribunal that may consider the issue, or the time has expired for such determination." In Heffernan the respondent learned of the false identity "a few months after the court hearing," 58 Ohio St. at 260, 569 N.E.2d at 1027, presumably long after the time for appeal had expired. But what about collateral proceedings? Do they count under the Rule in determining when the "highest tribunal" has decided the matter or whether time for such decision has expired? Interestingly, in Heffernan -- more than two years after the initial court hearing -- the falsely charged brother, Joseph Fresenda, moved to withdraw the no-contest plea "based on the fact that it was actually his brother Phillip Fresenda who was cited and found guilty of the traffic offense and that Phillip had held himself out to be Joseph to the citing officer and the municipal court." Id. (emphasis in original). Although the Heffernan decision does not indicate how the motion to withdraw the plea was decided, it is at least arguable that this issue had not yet been finally determined under the formulation of division (c), and it is more than arguable that "the issue to which the duty relates" was precisely that raised in the motion to withdraw.

3.3:600 Discretion to Withhold Evidence Believed To Be False

  • Primary Ohio References: Ohio Rule 3.3(a)(3)
  • Background References: ABA Model Rule 3.3(a)(3)
  • Commentary: ABA/BNA § 61:304, ALI-LGL § 120, Wolfram § 125

Ohio Rule 3.3(a)(3) also provides that 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." As further stated in Comment [8],

[a] lawyer's reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer's knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(g). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.

Rule 3.3 cmt. [8].

The 2002 amendments to the Model Rules added the caveat, included in the Ohio Rule, that the discretion to withhold based on reasonable belief of falsity is unavailable with respect to the testimony of a criminal defendant; in such cases (as in all cases) the lawyer's obligation is not to offer evidence he or she "knows" to be false. See Rule 3.3(a)(3), first sentence, and section 3.3:400. As is stated in MR 3.3 cmt. [9], which was not adopted in Ohio):

Offering such proof [that which the lawyer reasonably believes to be false] may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate."

As stated in ABA, Annotated Rules of Professional Conduct 319 (6th ed. 2007) (commentary),

[t]he obligations of candor toward a tribunal provided in Rule 3.3(a) and (b) all supersede the obligation to protect the confidentiality of information relating to the representation provided in Rule 1.6.

Such disclosure of protected information in order to comply with Rule 3.3 is expressly stated in the mandatory disclosure language of Ohio Rule 1.6(c), a provision not found in the Model Rules.  See section 1.6:395.

With respect to the exception for false testimony by criminal defendants, MR cmt. [9] states as follows:

Because of the special protections historically provided criminal defendants . . . this Rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes but does not know that the testimony will be false. Unless the lawyer knows the testimony will be false, the lawyer must honor the client's decision to testify.

Further as to criminal-defendant testimony, see ABA, Annotated Model Rules of Professional Conduct 316-18 (6th ed. 2007).

3.3:700 Duty to Remedy Criminal or Fraudulent Conduct Related to Adjudicative Proceeding

  • Primary Ohio References: Ohio Rule 3.3(b)
  • Background References: ABA Model Rule 3.3(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.51, 7.53-7.55
  • Commentary: ABA/BNA § 61:301, ALI-LGL § 120

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Laywer's Guide to the Ohio Code of Professional Responsibility § 7.51, 7.53-7.55 (1996).

Ohio Rule 3.3(b) obligates a lawyer who represents a client in an adjudicative proceeding and who knows that any person (including the client) intends to engage, is engaging, or has engaged in criminal or fraudulent conduct, to "take reasonable measures to remedy the situation, including, if necessary, disclosure to the tribunal." See Rule 3.3 cmt. [12]. And, pursuant to Rule 1.6(c), disclosure of information relating to the representation, including privileged information, is mandatory to the extent the lawyer reasonably believes necessary to comply with Rule 3.3 (or 4.1).

As stated in the comment, this duty is part of the "special obligation" of lawyers "to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the judicial process . . . . Thus, division (b) requires a lawyer to take reasonable remedial measures, including disclosure if necessary . . . ." Id.

Division (b), modeled closely on MR 3.3(b) (the only difference is the insertion of "including the client" following "a person") is significantly different from one OHCPR analog, OH DR 7-102(A)(7). Former 7-102(A)(7) prohibited counseling or assisting the client in conduct known to be illegal or fraudulent. In Rule 3.3(b), there is no reference to refraining from counseling or assisting misconduct (a matter now treated in Ohio Rule 1.2(d)); Rule 3.3(b) imposes an affirmative obligation on a lawyer who, in representing a client in an adjudicative proceeding, knows of criminal or fraudulent conduct related to the proceeding -- not just by the client, as before, but by any "person," -- to take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Another code antecedent, OH DR 7-102(B), is more closely related to the Rule. DR 7-102(B) dealt with the obligations of a lawyer who learns (via "information clearly establishing") that in the course of the representation, a client "has" perpetuated a fraud on a person or tribunal; if so, the lawyer had to call on the client to rectify; if the client refused or was unable to do so, the lawyer "shall" reveal the fraud to the person or tribunal affected. DR 7-102(B)(1). Division (B)(2) obligated a lawyer learning of a fraud having been perpetrated by a person other than the client on a tribunal to promptly reveal that fraud to the tribunal.

While somewhat similar in overall effect, there are three significant differences between DR 7-102(B) and Rule 3.3(b). First, the disciplinary rule was limited to past conduct; the Rule deals with past, present, and future misconduct. Second, the misconduct addressed in the disciplinary rule was fraud; in the Rule it is criminal or fraudulent conduct. Third, 7-102(B)(1) sought to police fraud by the client on a tribunal and on "a person" as well. The Rule is limited to misconduct related to the proceeding before a tribunal. As the Task Force states in Ohio Code Comparison to Rule 3.3,

the rule does not adopt the DR 7-102(B)(1) requirement that the lawyer reveal the client's fraudulent act, during the course of the representation, upon any person. Requiring a lawyer to disclose any and all frauds a client commits during the representation is unworkable. There is no Ohio precedent where a lawyer was disciplined for failing to disclose a client's fraud upon a third person.

Despite the Task Force's disclaimer with respect to disclosure of fraud by the client on other than a tribunal, remember that Ohio Rule 4.1(b) speaks to disclosure obligations relating to client fraud (or illegal conduct) against a third person. Under Rule 4.1(b), in the course of representation a lawyer "shall not" knowingly fail to disclose a material fact when necessary to avoid assisting a client's fraud or illegal act. If the material facts encompass information relating to the representation, including privileged information, they must nevertheless be disclosed in accordance with the mandatory provisions of Rule 1.6(c). In contrast to the Task Force statement in its Ohio Code Commentary to Rule 3.3, quoted above, its Ohio Code Commentary to Rule 4.1 states that 4.1(b) "parallels . . . its 'fraud on a person' portion of DR 7-102(B)(1)." See further discussion in section 4.1:300.

It should also be noted in connection with Rule 3.3(b) that "fraud" and "fraudulent" are now defined terms. Each "denotes conduct that has an intent to deceive and is either of the following: (1) an actual or implied misrepresentation of a material fact that is made with knowledge of its falsity or with such utter disregard and recklessness about its falsity that knowledge may be inferred; (2) a knowing concealment of a material fact where there is a duty to disclose the material fact." Ohio Rule 1.0(d).

The following cases decided under the former OHCPR would seem to rest reasonably comfortably within the Rule 3.3(b) mold.

Known fraudulent or criminal conduct by a client related to an adjudicative proceeding:

  • Disciplinary Counsel v. Cirincione, 102 Ohio St.3d 117, 2004 Ohio 1810, 807 N.E.2d 320. In Cirincione, respondent was found to have violated DR 7-102(B)(1) for failing to call upon the client to rectify her violation of judicial-release conditions and then not reporting the matter to the court.

  • Office of Disciplinary Counsel v. Taylor, 78 Ohio St.3d 312, 677 N.E.2d 1188 (1997). In Taylor, respondent found out, during his representation of a client on various motor-vehicle infractions, that the client was using the identity of his brother. Unlike Heffernan, discussed immediately below, respondent apparently went along with the scheme after being advised of it by the client's sister; there was no indication of any attempt to have the client rectify the matter, and respondent did not notify the courts of the fraud. Violation of, inter alia, DR 7-102(B)(1).

  • Office of Disciplinary Counsel v. Heffernan, 58 Ohio St.3d 260, 569 N.E.2d 1027 (1991). In Heffernan, the Court disciplined an attorney who failed to disclose a previous false statement made to the court by his client. The lawyer's client had pretended to be his brother during a traffic court hearing, in order to escape the ramifications of his own bad-driving record. Several months after the hearing, the lawyer learned of the perjury and confronted his client to have him rectify the criminal and fraudulent conduct. When the client failed to do so, the lawyer did not disclose the conduct to the court. Former OH DR 7-102(B)(1) held violated. (Query, however, whether Heffernan is still good law under the time limit imposed on the division (b) duty by Rule 3.3(c). This issue is discussed in Rule 3.3 cmt. [13] and in section 3.3:500 supra).

  • Lake County Bar Ass'n v. Walker, 17 Ohio St.3d 144, 478 N.E.2d 767 (1985). In Walker the respondent remained silent when his client lied to the court about the existence and whereabouts of assets; DR 7-102(B)(1) violated.

To the extent a client perpetrates a fraud with respect to a matter in which the lawyer does not represent the client, but the fraud has an impact upon a matter in which the lawyer does represent the client (and in that respect can be viewed as "related to the proceeding"), it would seem that Rule 3.3(b) should be applicable. An ethics opinion to this effect under the former OHCPR is:

  • Cleveland Bar Ass'n Op. 94-2 (Sept. 8, 1994). According to the facts presented, a lawyer represented a minor and the minor's unmarried parents in a personal-injury action and an uninsured-motorist claim. In a separate proceeding, which occurred while the accident litigation was pending, the mother, who was not represented by the lawyer in this second matter, had the child's name changed without the father's consent. In the course of doing so, she presented the probate court with a false affidavit that the location of the father was unknown and could not be discovered with reasonable diligence. That affidavit, in turn, could have affected the tort matter in which the lawyer was providing representation, undercutting the father's claim for loss of the child's services by contradicting the father's claim of involvement with his child. Under these circumstances, the bar association opined that the lawyer had to assure that the fraud was revealed to the tribunal hearing the tort case, the probate court, and the affected person, the father.

Conduct that is "related to the proceeding" need not be part of the formal proceedings, although such conduct in the proceeding itself is certainly included. See Rule 3.3 cmt. [10] (depositions). Other conduct that is "related to the proceeding" includes "bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official, or other participant in the proceeding." Rule 3.3 cmt. [12]. Likewise coming within the Rule is "unlawfully destroying or concealing documents or other evidence, or failing to disclose information to the tribunal when required by law to do so." Id. See also Reporter's Explanation of Changes to Model Rule 3.3 (2002), referring to "jury tampering or document destruction" and "lies or misrepresentations by the opposing party or witnesses called by the opposing party" as examples that fall within the Rule. While the precise reach of "related to the proceedings" will have to await further development, these examples make clear that the fraudulent or criminal conduct will "relate[] to the proceeding" if it "undermines the integrity of the adjudicative process" in that proceeding. Rule 3.3 cmt. [12].

(The debate with respect to whether the lawyer is obligated to disclose otherwise protected information has, of course, been resolved under the Rule, which expressly provides that the lawyer's duty under Rule 3.3(b) applies even if compliance requires disclosure of information otherwise protected by Rule 1.6. Ohio Rule 3.3(c).)

One ethics opinion that does not survive adoption of Rules 3.3(b) and (c) is Bd. of Comm'rs on Greiveance & Discipline Op. 90-07, 1990 Ohio Griev. Discip. LEXIS 14 (Apr. 20, 1990), in which the Board opined that, despite former 7-102(B)(1) and 4-101(C)(2) (allowing a lawyer to disclose confidential information when permitted under a disciplinary rule), a lawyer should not disclose confidential information about a client fraud upon a tribunal; if the client refuses to reveal the fraud, the lawyer should withdraw.  Obviously, Rules 3.3(b) and (c) call for a different result than that provided in Opinion 90-07.

Another ethics ruling that would appear not to have survived is Ohio State Bar Ass'n Informal Op. 87-10 (Sept. 17, 1987). In Opinion 87-10, a lawyer learned that a corporate client had committed fraud involving misrepresentation to the Internal Revenue Service of facts in seeking subchapter S status for tax filing purposes. The OSBA opined that if the IRS was a "person or tribunal" within the meaning of former 7-102(B), the lawyer had to call on the client to rectify and if it refused to do so the lawyer was obligated to reveal the matter to the IRS. There are three problems with this result under Rule 3.3(b): First, the IRS was not acting in this instance as a "tribunal" (i.e., "an administrative agency . . . acting in an adjudicative capacity. [An] administrative agency . . . acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.") Rule 1.0(o). Second, for similar reasons, the lawyer was not representing the client "in an adjudicative proceeding," and the fraud did not relate to such a proceeding, as required by Rule 3.3(b). (But it would likely be a violation of Rule 1.2(d).) Third, even if the IRS were a "person" (an undefined term under the Rules) disclosure of a client's fraud on a person is no longer covered by Rule 3.3(b). See Ohio Code Comparison to Rule 3.3. As discussed above, however, such conduct may now be covered by Rule 4.1(b).

Known fraudulent or criminal conduct related to an adjudicative proceeding by a person other than a client: To our knowledge, there are only two Ohio disciplinary cases involving violation of former OH DR 7-102(B)(2) that implicated a duty to disclose to the tribunal fraud on the tribunal by a person other than a client. In Columbus Bar Ass'n v. Wright, 58 Ohio St.3d 126, 568 N.E.2d 1218 (1991), former clients of respondent (the Edgintons) declared bankruptcy; they were represented by another attorney in the bankruptcy proceedings. While the evidence was disputed as to whether respondent, while representing the Edgintons, had counseled them to conceal certain expectancy assets, it was undisputed that at a meeting of creditors at which respondent was present, he heard the Edgintons make the false statements about their assets but did not disclose this to the bankruptcy court. As a result, respondent was found to have violated DR 7-102(B)(2). The other case, Bar Ass'n of Greater Cleveland v. Cassaro, 61 Ohio St.2d 62, 399 N.E.2d 545 (1980), is more problematical. There is a conclusion that OH DR 7-102(B)(2) was violated by respondent, but no analysis of that violation. As best as can be discerned, this violation was based on the fact that respondent was handling on referral fraudulent workers' compensation claims concocted by another lawyer, Berman. Presumably the 7-102(B)(2) violation was premised on respondent's failure to advise the Industrial Commission that the claims of his clients were the result of fraud by Berman, but there is precious little in the opinion that examines this charge, other than the conclusory finding of violation of the disciplinary rule.

There are two ethics opinions dealing with this point, Ohio State Bar Ass'n Op. 75-8 (June 30, 1975) (lawyer obligated to disclose fraud on Industrial Commission by others in addition to client), and Cleveland Bar Ass'n Op. 89-2 (Nov. 17, 1989) (obligation to disclose to tribunal fraud on court perpetrated by supposed eye-witness by testifying falsely at deposition and arbitration concerning circumstances of automobile accident).

Once again, the differences between the former disciplinary rule and Rule 3.3(b) should be emphasized. First, Rule 3.3(b) deals with both criminal and fraudulent conduct, not just fraud. Second, it does not cover known fraud or criminal conduct by a client toward another person, unless that conduct can be fairly said to be related to the adjudicative proceeding in which the lawyer is representing the client. Third, it covers past, present, and future criminal or fraudulent activity, not just past fraud.

3.3:800 Duty of Disclosure in Ex Parte Proceedings

  • Primary Ohio References: Ohio Rule 3.3(d)
  • Background References: ABA Model Rule 3.3(d)
  • Commentary: ALI-LGL § 112, Wolfram § 12.7

Ohio Rule 3.3(d) provides that in an ex parte proceeding, "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."

Because "in any ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates," Rule 3.3 cmt. [14], this expanded duty of candor is applicable. See also ABA, Annotated Model Rules of Professional Conduct 319-20 (6th ed. 2007) (commentary).

The OHCPR did not speak to this issue, and no Ohio authority on point has been found.