Rule 4-3.3 — Candor Toward the Tribunal

Comment (verbatim from The Florida Bar)

This rule governs the conduct of a lawyer who is representing
a client in the proceedings of a tribunal. See terminology for the
definition of “tribunal.” It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant
to the tribunal’s adjudicative authority, such as a deposition. Thus,
for example, subdivision (a)(4) requires a lawyer to take reasonable
remedial measures if the lawyer comes to know that a client who is
testifying in a deposition has offered evidence that is false.

This rule sets forth the special duties of lawyers as officers of
the court to avoid conduct that undermines the integrity of the
adjudicative process. A lawyer acting as an advocate in an
adjudicative proceeding has an obligation to present the client’s
case with persuasive force. Performance of that duty while
maintaining confidences of the client is qualified by the advocate’s
duty of candor to the tribunal. Consequently, although a lawyer in
an adversary proceeding is not required to present a disinterested
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.
Lawyers who represent clients in alternative dispute resolution
processes are governed by the Rules of Professional Conduct. When
the dispute resolution process takes place before a tribunal, as in
binding arbitration (see terminology), the lawyer’s duty of candor is
governed by rule 4-3.3. Otherwise, the lawyer’s duty of candor
toward both the third-party neutral and other parties is governed by
rule 4-4.1.
Representations by a lawyer
An advocate is responsible for pleadings and other documents
prepared for litigation, but is usually not required to have personal
knowledge of matters asserted therein, for litigation documents
ordinarily present assertions by the client, or by someone on the
client’s behalf, and not assertions by the lawyer. Compare rule 4-
3.1. However, an assertion purporting to be on the lawyer’s own
knowledge, as in an affidavit by the lawyer or in a statement in
open court, may properly be made only when the lawyer knows the
assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure
to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in rule 4-1.2(d) not to
counsel a client to commit or assist the client in committing a fraud
applies in litigation. Regarding compliance with rule 4-1.2(d), see
the comment to that rule. See also the comment to rule 4-8.4(b).

Misleading legal argument
Legal argument based on a knowingly false representation of
law constitutes dishonesty toward the tribunal. A lawyer is not
required to make a disinterested exposition of the law, but must
recognize the existence of pertinent legal authorities. Furthermore,
as stated in subdivision (a)(3), an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction that has not
been disclosed by the opposing party. The underlying concept is
that legal argument is a discussion seeking to determine the legal
premises properly applicable to the case.
False evidence
Subdivision (a)(4) requires that the lawyer refuse to offer
evidence that the lawyer knows to be false, regardless of the client’s
wishes. This duty is premised on the lawyer’s obligation as an
officer of the court to prevent the trier of fact from being misled by
false evidence. A lawyer does not violate this rule if the lawyer
offers the evidence for the purpose of establishing its falsity.
If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should
seek to persuade the client that the evidence should not be offered.
If the persuasion is ineffective and the lawyer continues to
represent the client, the lawyer must refuse to offer the false
evidence. If only a portion of a witness’s testimony will be false, the
lawyer may call the witness to testify but may not elicit or otherwise
permit the witness to present the testimony that the lawyer knows
is false.
The duties stated in this rule apply to all lawyers, including
defense counsel in criminal cases.
The prohibition against offering false evidence only applies if
the lawyer knows that the evidence is false. A lawyer’s reasonable
belief that evidence is false does not preclude its presentation to the
trier of fact.
The rule generally recognized is that, if necessary to rectify the
situation, an advocate must disclose the existence of the client’s

deception to the court. Such a disclosure can result in grave
consequences to the client, including not only a sense of betrayal
but also loss of the case and perhaps a prosecution for perjury. But
the alternative is that the lawyer cooperate in deceiving the court,
thereby subverting the truth-finding process that the adversary
system is designed to implement. See rule 4-1.2(d). Furthermore,
unless it is clearly understood that the lawyer will act upon the
duty to disclose the existence of false evidence, the client can
simply reject the lawyer’s advice to reveal the false evidence and
insist that the lawyer keep silent. Thus, the client could in effect
coerce the lawyer into being a party to fraud on the court.
Remedial measures
If perjured testimony or false evidence has been offered, the
advocate’s proper course ordinarily is to remonstrate with the client
confidentially if circumstances permit. In any case, the advocate
should ensure disclosure is made to the court. It is for the court
then to determine what should be done–making a statement about
the matter to the trier of fact, ordering a mistrial, or perhaps
nothing. If the false testimony was that of the client, the client may
controvert the lawyer’s version of their communication when the
lawyer discloses the situation to the court. If there is an issue
whether the client has committed perjury, the lawyer cannot
represent the client in resolution of the issue and a mistrial may be
unavoidable. An unscrupulous client might in this way attempt to
produce a series of mistrials and thus escape prosecution.
However, a second such encounter could be construed as a
deliberate abuse of the right to counsel and as such a waiver of the
right to further representation. This commentary is not intended to
address the situation where a client or prospective client seeks legal
advice specifically about a defense to a charge of perjury where the
lawyer did not represent the client at the time the client gave the
testimony giving rise to the charge.
Refusing to offer proof believed to be false
Although subdivision (a)(4) only prohibits a lawyer from
offering evidence the lawyer knows to be false, it permits the lawyer
to refuse to offer testimony or other proof that the lawyer

reasonably believes is false. Offering such proof 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.
A lawyer may not assist the client or any witness in offering
false testimony or other false evidence, nor may the lawyer permit
the client or any other witness to testify falsely in the narrative form
unless ordered to do so by the tribunal. If a lawyer knows that the
client intends to commit perjury, the lawyer’s first duty is to
attempt to persuade the client to testify truthfully. If the client still
insists on committing perjury, the lawyer must threaten to disclose
the client’s intent to commit perjury to the judge. If the threat of
disclosure does not successfully persuade the client to testify
truthfully, the lawyer must disclose the fact that the client intends
to lie to the tribunal and, per 4-1.6, information sufficient to
prevent the commission of the crime of perjury.
The lawyer’s duty not to assist witnesses, including the
lawyer’s own client, in offering false evidence stems from the Rules
of Professional Conduct, Florida statutes, and caselaw.
Rule 4-1.2(d) prohibits the lawyer from assisting a client in
conduct that the lawyer knows or reasonably should know is
criminal or fraudulent.
Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or
assisting a witness to testify falsely.
Rule 4-8.4(a) prohibits the lawyer from violating the Rules of
Professional Conduct or knowingly assisting another to do so.
Rule 4-8.4(b) prohibits a lawyer from committing a criminal
act that reflects adversely on the lawyer’s honesty, trustworthiness,
or fitness as a lawyer.
Rule 4-8.4(c) prohibits a lawyer from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation.
Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that
is prejudicial to the administration of justice.

Rule 4-1.6(b) requires a lawyer to reveal information to the
extent the lawyer reasonably believes necessary to prevent a client
from committing a crime.
This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact
to the tribunal when disclosure is necessary to avoid assisting a
criminal or fraudulent act by the client, and 4-3.3(a)(4) prohibits a
lawyer from offering false evidence and requires the lawyer to take
reasonable remedial measures when false material evidence has
been offered.
Rule 4-1.16 prohibits a lawyer from representing a client if the
representation will result in a violation of the Rules of Professional
Conduct or law and permits the lawyer to withdraw from
representation if the client persists in a course of action that the
lawyer reasonably believes is criminal or fraudulent or repugnant or
imprudent. Rule 4-1.16(c) recognizes that notwithstanding good
cause for terminating representation of a client, a lawyer is obliged
to continue representation if so ordered by a tribunal.
To permit or assist a client or other witness to testify falsely is
prohibited by section 837.02, Florida Statutes (1991), which makes
perjury in an official proceeding a felony, and by section 777.011,
Florida Statutes (1991), which proscribes aiding, abetting, or
counseling commission of a felony.
Florida caselaw prohibits lawyers from presenting false
testimony or evidence. Kneale v. Williams, 30 So. 2d 284 (Fla.
1947), states that perpetration of a fraud is outside the scope of the
professional duty of an attorney and no privilege attaches to
communication between an attorney and a client with respect to
transactions constituting the making of a false claim or the
perpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17
(Fla. 1960), reminds us that “the courts are . . . dependent on
members of the bar to . . . present the true facts of each cause . . .
to enable the judge or the jury to [decide the facts] to which the law
may be applied. When an attorney . . . allows false testimony . . .
[the attorney] . . . makes it impossible for the scales [of justice] to
balance.” See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and
The Fla. Bar v. Simons, 391 So. 2d 684 (Fla. 1980).

The United States Supreme Court in Nix v. Whiteside, 475 U.S.
157 (1986), answered in the negative the constitutional issue of
whether it is ineffective assistance of counsel for an attorney to
threaten disclosure of a client’s (a criminal defendant’s) intention to
testify falsely.
Ex parte proceedings
Ordinarily, an advocate has the limited responsibility of
presenting 1 side of the matters that a tribunal should consider in
reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in an ex parte
proceeding, such as an application for a temporary injunction, there
is no balance of presentation by opposing advocates. The object of
an ex parte proceeding is nevertheless to yield a substantially just
result. The judge has an affirmative responsibility to accord the
absent party just consideration. The lawyer for the represented
party has the correlative duty to make disclosures of material facts
known to the lawyer and that the lawyer reasonably believes are
necessary to an informed decision.
Amended March 8, 1990 (557 So.2d 1368); July 23, 1992, effective January
1, 1993 (605 So.2d 252); May 20, 2004 (875 So.2d 448); November 19,
2009, effective February 1, 2010 (24 So.3d 63).