New York ethics opinion: Lawyers must report when client lied

by Correy Stephenson The Daily Record Newswire A lawyer who learns after the fact that a client has lied about a material issue in a deposition in a civil case must take reasoånable remedial measures - starting with counseling the client to correct the testimony, according to a New York ethics opinion. And if necessary, the lawyer may be required to disclose the lie to the tribunal, the opinion said. In Formal Opinion 741, the New York County Lawyers Association Committee on Professional Ethics answered the following question: What are a lawyer's duties and obligations when the lawyer learns after the fact that the client has lied about a material issue in a civil deposition? Under New York's prior rules of professional conduct, the Committee had previously issued an opinion that lawyers who learn of a client's past false deposition testimony had to maintain the confidentiality of that information, but could not use it in settlement or at trial. In some situations, that led to lawyers being forced to withdraw from representation. In light of the rules as amended in April 2009, the Committee determined that lawyers now have an obligation to take remedial measures when they learn of a client's false deposition testimony. "As a first step, a lawyer should certainly remonstrate with the client in an effort to correct known false testimony," the Committee said. Lawyers "should explore whether the client may be mistaken or intentionally offering false testimony," and demonstrate to the client why the testimony is not correct or try to refresh the client's recollection. "A lawyer may also reference the attorney's duty to disclose when remonstrating with the client. "Only if remonstration efforts fail should the lawyer take further steps," the Committee said. It did not set a time limit with which to remedy false testimony, but said that "it should be remedied before it is relied upon to another's detriment. ... "Depending on the circumstances the lawyer may be able to correct the false testimony or withdraw the false statement. ... "Once the lawyer is aware of material false deposition testimony, the lawyer may not sit by idly while the false evidence is preserved, perpetuated or used by other persons involved in the litigation process. "Thus, if a settlement is based even in part upon reliance on false deposition testimony, the lawyer may not ethically proceed with a settlement. "The falsity must be corrected or revealed prior to settlement," the Committee said. Further, "[i]f remonstration is not effective, the attorney must disclose the false testimony. "However, disclosure of client confidential information should be limited to the extent necessary to correct the false testimony." Published: Mon, Apr 19, 2010

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