Trials in movies and on TV often show a witness swearing to tell the truth, the whole truth and nothing but the truth. Sometimes, the climax of the program is a lawyer using skillful questions to ascertain that the key witness is lying. This can be a triumphant development for the lawyer who exposes the witness, but what if that witness has their own counsel? Can their lawyer get in trouble for the witness’ misdeeds on the stand?

Rule 4.1 of the ABA Model Rules of Professional Conduct provides that “[i]n the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.”

Lawyers often learn key facts about a representation through their clients. Clients may provide documents and narratives on which the lawyer relies to develop themes and theories. Lawyers are permitted to rely on their clients in repeating facts to a tribunal or another party and often do. Lawyers also generally assume their clients are being truthful with them. But what should a lawyer do if they learn their client has not been truthful with them?

Here are some tips for how a lawyer can ensure that they are making truthful representations to others, as well as what to do if they are misled by a client.

What if a Client Lies?

Comment [1] to Rule 4.1 describes a lawyer’s obligation to tell the truth or correct the record: “A lawyer is required to be truthful when dealing with others on a client's behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements.”

Thus, while a lawyer may not have an obligation to disclose all relevant facts to an opposing party, a lawyer may have an obligation to correct misstatements of fact or to reject statements the lawyer knows to be false, unless the rule on client confidentiality (Rule 1.6) prohibits comment. In this way, a lawyer is not supposed to co-sign or amplify statements by a client that the lawyer knows to be false.

Lawyers Are Permitted to Rely on Their Clients

It is reasonable, commonplace, and often necessary for lawyers to rely on their clients to provide them with facts and information related to a representation. Indeed, in most cases, lawyers will not know what events took place prior to a corporate deal or litigation without consulting and relying on their clients.

However, lawyers are still bound by Rule 11, the rules on candor, and other obligations. On one hand, it is not uncommon for a lawyer to plead facts “upon information and belief” that are later proven or disproven in discovery. Where there is a reasonable basis to believe such facts are true, lawyers typically do not run afoul of their truthfulness obligations by pleading such facts early in a matter. But on the other hand, if the lawyer continues to repeat facts gleaned from the client even after learning that those facts are unsupported (or where such facts appear inherently unreasonable on their face), the lawyer may face repercussions.

Is Disclosure or Withdrawal Necessary?

If a client insists on fabricating facts in a proceeding, ignoring the lawyer’s advice, the lawyer should consider their obligation to withdraw or to correct the record. If a lawyer knows that a client is about to testify untruthfully, for example, some courts will allow the client to testify unassisted, that is, without the lawyer directing the client and asking questions. In this way, the lawyer maintains their ethical obligation not to suborn perjury – but it requires the lawyer typically to have a candid discussion with the Judge.

Rule 1.6 gives lawyers the ability to reveal client confidential or privileged information in certain instances, while Rule 4.1 requires the disclosure of information when the failure to disclose will assist the client in committing a criminal or fraudulent act. Taken together, a lawyer may be obligated to disclose certain information regarding criminal or fraudulent acts but may need to do so with careful consideration of the Rule 1.6 confidentiality obligations.

If a client will not abide by a lawyer’s instructions, and the lawyer’s ability to disclose their client’s intent is restricted, withdrawal from the matter may be a necessity. In those instances, if it is a matter in litigation, a court may inquire as to whether withdrawal can occur without a materially adverse impact on the client’s interests.

What Is a Fact?

Whether an attorney has an obligation to intervene to avoid assisting a criminal or fraudulent act by a client can depend on whether the attorney has failed to disclose a “material fact.” Comment [2] discusses specific types of statements that are not ordinarily considered statements of material fact that trigger a potential duty to correct the record. For example, the comment recognizes that “in negotiation, certain types of statements ordinarily are not taken as statements of material fact.” It is expected that statements that fall under the category of “puffing”—such as boasting about the strength of one’s case—are not considered “facts” regarding which an attorney must always be truthful. Other examples in Comment [2] of statements that do not constitute “facts” that warrant correction include: “[e]stimates of price or value placed on the subject of a transaction,” “a party’s intentions as to an acceptable settlement of a claim,” and “the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.”

By being aware of these lines, lawyers can ensure that they—and their clients—present true and correct facts to tribunals.