Zealous Advocacy: Candor Towards the Tribunal

By Martha D. Moore

Lawyers are required to provide zealous advocacy on behalf of clients. However, zealous advocacy is not unrestricted combat; there are necessary rules to the game. The representation, although zealous, must occur within the bounds of law and ethical constraints. Lawyers are also required to preserve confidential client information as set forth in Model Rule 1.6. However, the ethical duty of confidentiality is not absolute. The duty to preserve confidential client information is sometimes at enmity with the superior duty of honesty and truthfulness toward the tribunal. Peculiarly, “lawyer[s] [have] a duty to know everything, to keep it in confidence, and to reveal it to the court1.”

ABA Model Rule 3.3(a) resolves this dilemma. This rule provides that a lawyer shall not make a false statement of fact or law to a tribunal. Administrative regulatory agencies, such as gaming boards, are considered tribunals subject to Rule 3.3. Pursuant to Model Rule 3.9:

A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of the Rules 3.3(a) through (c) [Candor Towards the Tribunal], 3.4(a) through (c) [Fairness To Opposing Counsel], and 3.5 [Impartiality and Decorum of the Tribunal]. 

Because of the overarching goal of preserving the integrity of the judicial system in its truth-seeking mission, Model Rule 3.3 trumps all other rules, including Model Rule 1.6 pertaining to the ethical duty of confidentiality.

In a civil case, if a lawyer knows that a client or a witness will give false testimony, the lawyer is absolutely precluded from calling the witness at the hearing or trial and soliciting the false testimony.  This requirement is not discretionary with the lawyer—it is mandatory. Whoever flaunts or disobeys this requirement is loosely gambling with his or her license to practice law, not to mention his or her reputation, perhaps even his or her freedom.

If the lawyer reasonably believes that the civil client or witness will lie, then the lawyer has the option of determining whether to call the client or witness. This holds true even if the client insists that the client or witness be called. However, mere suspicion that a civil client or witness will lie is insufficient. In this case, the lawyer must err on the side of the client and call the client or witness.

In a criminal case, if the lawyer knows that the defendant will lie, the lawyer may not constitutionally prevent the defendant from testifying. Unlike a civil client, a lawyer’s reasonable belief that a criminal defendant will lie is insufficient for the lawyer to refuse to call the criminal defendant to testify. 

Criminal defendants have a constitutional right to testify. The criminal defendant’s “right to testify is one of the rights that are essential to due process of law in a fair adversary process’’ and [is] protected by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution2.

However, the lawyer may not elicit false testimony from the defendant3. While the criminal defendant has the right to testify, the criminal defendant does not have the right to commit perjury. Instead, the usual question-and-answer format is discarded and the defendant is allowed to testify in a narrative fashion4. 

The lawyer must refrain from referring to any of the perjured testimony in the closing argument, and is also prohibited from sitting idly by with knowledge of false statements.

Model Rule 3.3 requires lawyers to take remedial action upon learning that a client “intends to engage, is engaging or has engaged in” a fraud or crime upon the tribunal. The remedial action commences with the lawyer’s frank attempt to dissuade the client from continuing with the wrongful conduct. The lawyer should try to convince the client to abandon the plan to lie or to recant or correct the erroneous statements to the court.

The wise client will heed the lawyer’s advice. However, if the client rejects the lawyer’s advice, the lawyer is required to take further remedial action, including disclosure to the tribunal, even if such information would otherwise be protected by the ethical duty of confidentiality.

Preserving the integrity of the gaming-regulatory process simply takes precedence over the duty of preserving client confidential information. While clients are entitled to zealous advocacy, they are not entitled to the zealous advancement of false perjury to the tribunal. The lawyer’s duty to take remedial action continues to the conclusion of the case, which includes the exhaustion of the appellate process.

It must be emphasized that the lawyer is required to take remedial action only if the lawyer knows that the client or witness will lie, is lying, or has lied.

When a lawyer’s state of knowledge is relevant, in the absence of circumstances indicating otherwise, a lawyer may assume that a client will use the lawyer’s counsel for proper purposes. Mere suspicion on the part of the lawyer that the client might intend to commit a crime or fraud is not knowledge.

Under the actual knowledge standard…a lawyer is not required to make a particular kind of investigation in order to ascertain more certainly what the facts are….Only information known to the lawyer at the time the lawyer provides the assistance is relevant, not information learned afterwards5.

Truth seeking is fundamental to the hearing process. Truth seeking takes precedence over the maintenance of confidential client information and zealous advocacy. This holds especially true in the gaming-law area, which is already clouded with suspicion and mistrust.

Gaming lawyers must not wheel and deal with presenting false evidence to the tribunal. Rather, gaming lawyers must maintain integrity when dealing with the tribunal, even if it requires
disclosure of confidential information.

1. Gavin Mackenzie, Lawyers and Ethics Professional
Responsibility and Discipline 7-1 (2001)
(quoting Samuel Dash, Book Review of John M.                      
Burkhoff’s Criminal Defense Ethics
(Clark Boardman, NY, 1986) in 1 Geo. J.
Legal Ethics 641 (1988).  

2. People v. Johnson, 72 Cal. Rptr. 2d at 809
    (quoting Rock, 483 U.S. at 51).

3. Id. at 817.

4. Id. at 813. 

5. Restatement (Third) of the Law: The Law Governing                               
Lawyers § 94 cmt. g (2000).

Martha D. Moore is a Thomas M. Cooley Law School Associate Professor. She is a 1983 graduate of the University of North Carolina School of Law-Chapel Hill and practiced law for over 20 years before joining the faculty at Thomas M. Cooley Law School. Professor Moore teaches Civil Procedure and Professional Responsibility. Moore concentrated her practice in the area of professional ethics and responsibility, having served as a prosecutor for the Michigan Attorney Grievance Commission and thereafter formed a firm, which defended lawyers in attorney disciplinary proceedings. She received her M.P.A. and B.A. from North Carolina State University.