Multistate Professional Responsibility Examination (MPRE)Litigation and Other Forms of AdvocacyMedium
A lawyer represents a plaintiff in a complex civil fraud case. During the trial, the lawyer becomes aware that a key witness for the plaintiff, who has already testified, committed perjury regarding a material fact. The lawyer confronts the witness, who admits to lying on the stand. What is the lawyer's primary ethical obligation in this situation?
- ATo take reasonable remedial measures, including disclosure to the tribunal if necessary.
- BTo keep the witness's perjury confidential, as it was revealed by the client's witness.
- CTo advise the client to settle the case immediately to avoid the revelation of the perjury.
- DTo request a mistrial and withdraw from the case due to the witness's perjury.
Show answer & explanationAnswer & explanation
Correct answer: A. To take reasonable remedial measures, including disclosure to the tribunal if necessary.
Rule 3.3(a)(3) of the Model Rules of Professional Conduct requires a lawyer to take reasonable remedial measures upon learning that a witness offered by the lawyer has offered false material evidence. This includes disclosure to the tribunal if other measures are ineffective.
Why the other options are wrong
- B. The duty of candor to the tribunal overrides confidentiality concerning client or witness perjury.
- C. Advising settlement does not remedy the existing perjury and could be seen as an attempt to conceal it.
- D. While a mistrial might occur, the primary obligation is remedial action, not immediately requesting a mistrial or withdrawal without attempting other measures first.
Candor Toward the Tribunal (False Evidence)
A lawyer must not knowingly offer false evidence and must take reasonable remedial measures, including disclosure, if the lawyer learns that material evidence offered by the lawyer is false.
- Duty applies regardless of client's wishes.
- Overrides duty of confidentiality.
- Remedial measures may include remonstrating with the client/witness, withdrawing, or disclosure to the court.
Memory trick: False evidence uncovered? Rectify it, or face the court's scrutiny.