Must a lawyer tell the court when a newly found witness contradicts an affidavit the lawyer already submitted?

Plain-English summary

Opinion 213 (adopted June 19, 1990) arose from a post-trial ineffective-assistance-of-counsel proceeding. The inquirer argued that predecessor counsel had been ineffective for failing to secure enforceable process on a witness ("Witness B") whose testimony allegedly would have exculpated the defendant. In support, the inquirer submitted an affidavit from another witness ("Witness A") recounting an inculpatory statement Witness B had allegedly made in her presence. Months after the court took the matter under advisement, the inquirer located Witness B, who denied ever making any such statement to Witness A. The inquirer asked whether he had an ethical obligation to tell the court that Witness B denied the statement.

The committee concluded that what the inquirer learned from Witness B was a client "secret" under DR 4-101(A), whose disclosure would likely be detrimental to the client, so unless an exception applied the inquirer could not reveal it. It worked through the cited disciplinary rules: there was no violation of DR 7-102(A)(4) (knowing use of false evidence), because counsel had no knowledge of any falsity when he submitted Witness A's affidavit, and conflicting witness statements do not by themselves amount to knowledge that one is false; no violation of DR 7-102(A)(5) (knowing false statement of fact), for the same lack of knowledge; and no duty under DR 7-102(B)(2) to reveal a non-client fraud, because that duty requires information "clearly establishing" fraud, and the conflicting statements did not clearly establish that Witness A's account was false.

The committee concluded the inquirer had to preserve the client's confidences and secrets and was therefore not obligated to disclose what he learned from Witness B; disclosure at that point would in fact be prohibited. It cautioned, however, that given his present knowledge that Witness B denied the statement, the inquirer had to take care that any future representations to the court about what Witness B's testimony would have been did not run afoul of his ethical obligations. The committee noted the result would be the same under Rules 1.6 and 3.3, effective January 1, 1991.

Currency note

This opinion was issued in 1990, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct, and was decided under the former Code of Professional Responsibility. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did counsel have to tell the court the later witness contradicted the affidavit?

A: No. The committee concluded counsel was not obligated to disclose, and in fact could not, because what he learned from the second witness was a protected client secret.

Q: Was submitting the first witness's affidavit a knowing use of false evidence?

A: No. The committee concluded counsel had no knowledge of any falsity when he submitted the affidavit, and conflicting witness statements do not by themselves establish that one is false.

Q: Did the duty to reveal a non-client fraud require disclosure?

A: No. The committee concluded that duty requires information clearly establishing fraud, and the conflicting statements did not clearly establish that the affidavit was false.

Q: Did counsel have any continuing obligation?

A: Yes. The committee cautioned that counsel had to ensure his future representations to the court about the witness's testimony did not run afoul of his ethical obligations.

Background and rules framework

The opinion was decided under the former Code's DR 4-101 (preservation of confidences and secrets) and DR 7-102 (representing a client within the bounds of law), and the committee noted the same result would follow under Rule 1.6 (confidentiality) and Rule 3.3 (candor toward the tribunal). DR 4-101(B)(1) bars revealing a client secret unless an exception applies; DR 7-102(A)(4) and (A)(5) bar the knowing use of false evidence or a knowing false statement of fact; and DR 7-102(B)(2) requires revealing a non-client fraud on the tribunal only on information clearly establishing it.

Citations and references

Rules of Professional Conduct and Code provisions:

• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality of information)
• D.C. RPC 3.3 / Model Rule 3.3 (candor toward the tribunal)
• Former Code DR 4-101(B)(1) and DR 7-102(A)(4), (A)(5), (B)(2)

Cases:

• Butler v. United States, 414 A.2d 844 (D.C. 1979), conflicting witness statements do not by themselves establish knowledge of falsity
• In re Grievance Committee of U.S. District Court, 847 F.2d 57 (2d Cir. 1988), the duty to disclose non-client fraud requires actual knowledge
• In re Austern, 524 A.2d 680 (D.C. 1987), a lawyer's duty of candor in dealings with the court

See also

• DC Ethics Op. 234: Defense Counsel's Duties When a Client Insists on Testifying Falsely
• DC Ethics Op. 392: Candor to the Tribunal and Confidentiality
• DC Ethics Op. 219: Revealing Client Fraud Where a Federal Regulation Requires It

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-213