When a South Carolina lawyer learns after trial that the client and a witness committed perjury, must the lawyer act, and may the lawyer tell the insurer or law enforcement?

Plain-English summary

An insurer hired Lawyer L to defend client C in a suit arising from a car accident. C testified she was not speeding, and her boyfriend B testified as a passenger that she was not speeding; C won when the jury found the plaintiff mostly at fault. After trial, while loading exhibits, B told L that B had actually been driving (he had no valid license) and that he and C had switched seats after the accident. L thus learned both had committed perjury and suspected C's earlier insurance settlement was a fraud. The appeal period had not expired.

The committee concluded L had duties under Rule 3.3. Rule 3.3(a)(4) bars knowingly offering false evidence and requires reasonable remedial measures once a lawyer comes to know offered material evidence was false. The committee found B's admission, made when B had no reason to lie, gave L sufficient knowledge to trigger the rule, and that learning of the perjury from B rather than C did not diminish the duty. L therefore had to inquire of C; if satisfied false testimony had been offered, the comments direct the lawyer first to remonstrate with the client, then to seek withdrawal, and if that will not remedy the situation, to disclose to the court. Because the jury had already returned a verdict, withdrawal would not cure it, so if C refused to inform the court, L had to do so.

On timing, the committee read Rule 3.3(b)'s "conclusion of the proceeding" to extend, per Hazard & Hodes and the proposed Restatement, through the expiration of the appeal period or affirmance on appeal. The committee expressed no opinion on whether L owed a duty to inform the insurer, noting that depends on the nature of L's engagement (citing ABA Formal Opinion 96-403), but observed the insurer would likely learn of the perjury once L informed the court. Finally, because Rule 3.3 is a specific exception to Rule 1.6 confidentiality, and no rule requires reporting client perjury to law enforcement, L's confidentiality duty controlled and L could not inform law enforcement.

Currency note

This opinion was issued in 1997, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Does the lawyer have to act on perjury learned only after the verdict?

A: The committee concluded yes. Under Rule 3.3 the lawyer must inquire and, if satisfied false testimony was offered, urge the client to correct it and otherwise disclose to the court, a duty continuing to the conclusion of the proceeding.

Q: Does it matter that the lawyer learned of the perjury from a witness, not the client?

A: No. The committee stated Rule 3.3 does not require the lawyer to learn of the perjury from the client, so the duty was unaffected by the source.

Q: Can the lawyer report the perjury to law enforcement?

A: No. The committee concluded that because no rule requires reporting client perjury to police and Rule 3.3 is only a specific exception to Rule 1.6, the lawyer's confidentiality duty controls and the lawyer may not inform law enforcement.

Q: When does the duty to disclose to the court end?

A: The committee read Rule 3.3(b)'s "conclusion of the proceeding" to extend through the expiration of the appeal period, or affirmance if there is an appeal.

Background and rules framework

The opinion applied Rule 3.3 (candor toward the tribunal, including 3.3(a)(4) on false evidence and 3.3(b) on the duration of the duty) and Rule 1.6 (confidentiality), treating Rule 3.3 as a specific exception to Rule 1.6, each corresponding to the like-numbered Model Rule. The committee drew on the comments to Model Rule 3.3, scholarly authority, and the proposed Restatement to define "conclusion of the proceeding."

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / South Carolina RPC 3.3: candor toward the tribunal; remedial measures for false evidence; duration of the duty.
• Model Rule 1.6 / South Carolina RPC 1.6: confidentiality, subject to the Rule 3.3 exception.

Cases:

• State v. Jones, 923 P.2d 560 (Mont. 1996): insufficient knowledge of intended perjury.

Other opinions cited:

• ABA Formal Opinion 96-403: defense counsel's representation of insurer and insured.
• ABA Formal Opinion 95-396 (referenced in the no-contact context).

See also

• SC Bar Ethics Op. 97-07: Giving a Second Opinion
• SC Bar Ethics Op. 97-08: Email Confidentiality

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-97-14/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 97-14

Client C and her boyfriend B were in an automobile that collided with a car driven by P in a private parking lot. Insurance Company insured both automobiles. C settled a bodily injury and property damage claim with Insurance Company under P's liability policy. P then sued C, alleging among other claims that C was driving at an excessive rate of speed when the accident occurred.

Lawyer L was hired by Insurance Company to defend C in the action brought by P. At trial, C testified that she was not speeding. L also called B as a witness, who testified that he was riding in the passenger seat and that C was not speeding. C prevailed at trial upon a jury finding that P was 55% at fault for the accident.

After the trial had ended, while B was helping L load exhibits into L's car, B told L that B had actually been driving the car when the accident occurred. B did not have a valid driver's license and had switched seats with C after the accident. As a result of B's admission following the trial, L is now aware that both B and C committed perjury and believes that C's earlier settlement of claims may have been a fraud on Insurance Company. Both the earlier settlement of C's claims and the dismissal of a traffic ticket received by C in connection with the accident were handled by a lawyer other than L.

At the time of B's disclosure to L, the period for appeal had not expired.

Questions:
1) Does L have a duty to encourage C to reveal her perjury and possible fraud?
2) Does it matter that L learned of the perjury from a person other than the client?
3) Does L have a duty to inform the court of the perjury?
4) Does L have a duty to inform Insurance Company that B was the driver?
5) Does L have a duty to report the information to any other authority, such as law enforcement?

Summary:
L has a duty to inquire with C about B's statement that B and C testified falsely. If L is satisfied that false testimony has been offered, L should inform the tribunal. L's duties are unaffected by the fact that L learned of the perjury from a third party. L's duty to rectify the perjury continues "until the conclusion of the proceeding," a term not defined by the Rules of Professional Conduct or the comments. Several authorities have held that the conclusion of the proceeding extends until the conclusion of any appeal. The Committee does not express an opinion on whether L has a duty to inform Insurance Company, but it appears likely that Insurance Company will learn of the perjury when L informs the court. L has an ethical obligation not to inform any other authority, such as law enforcement.

Opinion:
Rule 1.6 provides that a lawyer has an ethical duty of confidentiality as to "Information relating to representation of a client," subject to certain exceptions. Model Rule 3.3, which deals with a lawyer's duty of candor to a tribunal, creates a special exception to Rule 1.6 when perjury occurs before a tribunal. Rule 3.3(a)(4) states:
A lawyer shall not knowingly . . .
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
In some cases a lawyer may not have sufficient "knowledge" of perjury to take action under this rule. See State v. Jones, 923 P.2d 560 (Mont. 1996) (defendant's Sixth Amendment rights violated when lawyer moved to withdraw on unsubstantiated belief that defendant intended to commit perjury). In this case B's admission to L that B and C committed perjury under circumstances in which B has no reason to lie is sufficient knowledge to trigger L's obligations under the rule. The fact that L learned of the false testimony from B rather than C does not diminish L's duty under the rule because the rule does not require the lawyer to learn of the perjury from the client.

L has a duty to inquire with C and B's statement that B and C testified falsely. If L is satisfied that false testimony has been offered, the comments to Model Rule 3.3 state that a lawyer's first duty under the rule is to try to persuade the client to rectify the perjury, but that if this fails, the lawyer should inform the court:
If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. Since the jury has already returned a verdict for C, withdrawal will not remedy the situation, so L's only course of action if C refuses to inform the court is for L to do so.

Model Rule 3.3(b) places a time limit on the lawyer's duty to disclose perjury: "The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1. 6.? The rule and comments do not define what is meant by the "conclusion of the proceeding," but several authorities indicate the duty continues until the expiration of any period for appeal: The "conclusion" of a proceeding for purposes of Rule 3.3(b) should be the point where the time to appeal has normally expired, or the point of affirmance if there has been an appeal. It would be equally plausible to extend the duty up to any specific time limit in the applicable rules for relief from judgment, where the ground for relief is the very fraud in question.
Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering Sec. 3.3:301 at 616 (2d ed. 1994).

The American Law Institute's proposed Restatement of the Law of Lawyering adopts a similar view: Responsibilities of a lawyer under this Section extend to the end of the proceeding in which the question of false evidence arises. Thus, a lawyer representing a client on appeal from a verdict in a trial continues to carry responsibilities with respect to false evidence offered at trial, particularly evidence discovered to be false after trial.
Section 180, comm.h (Tent.Draft #8, March 21, 1997).

The relationship and duties between defense counsel, insurer, and insured is not clearly covered by the Rules of Professional Conduct and is a topic of considerable current debate in the profession. Further, L's duties depend on the nature of L's engagement. See ABA Formal Opinion 96-403 (by agreement defense counsel may represent only insured or both insurer and insured). Accordingly, the Committee expresses no opinion on whether L has a duty to inform Insurance Company of the perjury by B and C. It appears likely, however, that Insurance will learn of the perjury when the matter is brought to the attention of the court.

L's duty to inform the tribunal under Model Rule 3.3(a)(4) is a specific exception to L's duty of confidentiality set forth in Rule 1.6. The Rules of Professional Conduct do not require a lawyer to inform law enforcement of perjury committed by a client. Accordingly, L's duty of confidentiality to C controls, and L may not inform law enforcement of C's perjury.