July 2013 Bar Bulletin
 
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July 2013 Bar Bulletin

Practical Ways to Maintain Candor with the Tribunal

By Colin Folawn

 

Non-lawyers might think that lawyers can say whatever they wish. But that is not true. As we practitioners know, there are several specific limitations on lawyers' speech.

For instance, a lawyer is not permitted to make false statements of fact or law to a tribunal.1 A lawyer also must not fail to correct a false statement of material fact or law that he or she previously made to the tribunal.2 A lawyer is not permitted to offer evidence that the lawyers knows to be false.3 When a lawyer believes, but does not know, that evidence is false, the lawyer may refuse to offer that evidence.4 Doubts are to be resolved in favor of the client.5

When a lawyer is before a tribunal ex parte, that lawyer must inform the tribunal of all known material facts that will enable the tribunal to make an informed decision, regardless of whether the facts are adverse.6 The Washington Supreme Court has held that it views "misrepresentations to the court in ex parte proceedings with particular disfavor."7 It does not, "and will not, tolerate any deviation from the strictest adherence to this duty."8 The attorney's "duty of candor is at its highest when opposing counsel is not present to disclose contrary facts or expose deficiencies in legal argument."9

A lawyer's duty of candor to the tribunal creates a tension between competing values. Even in the context of criminal defense, the advocate's obligations to the client are subordinate to those under the RPCs.10

If a lawyer makes a misstatement to a court, then the lawyer has an ethical obligation to promptly correct it. Washington's civil rules do not expressly provide a procedure for correcting inaccuracies in submissions to the court. So, what should you do when you realize that you have filed something that is inaccurate and needs to be corrected?

In such cases, many attorneys submit a praecipe. This common practice is not mentioned by the civil or appellate rules, but it also does not appear to be prohibited when used for this limited purpose. When a typographical or clerical error is discovered, attorneys will often file a praecipe that directs the clerk of the court to replace an original filing with a corrected filing.11 This practice can be used to correct submissions that trigger RPC 3.3 or mere typographical or clerical errors.

If the lawyer does not learn of the inaccuracy until oral argument, and it is too late to draft a written praecipe to hand up to the court and over to opposing counsel, then the lawyer should simply correct the inaccuracy in oral argument by bringing the issue to the court's attention and making the correction on the record.

Perhaps the most difficult and troubling scenario is when a lawyer offers evidence and later comes to know of its falsity. In such cases, the lawyer must promptly disclose this to the tribunal, unless the disclosure is prohibited by the lawyer's duty of confidentiality to the client.12 The lawyer also must promptly make reasonable efforts to convince the client to consent to the disclosure.13 If the client refuses, the lawyer may withdraw under RPC 1.16.14 In such cases, the lawyer should withdraw.15 This rule applies to testimony and falsified documents.16


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