IT'S SHOCKING, WE know, but lawyers occasionally have to deal with lying clients. In doing so, we juggle the competing demands of loyalty to the client, candor to the tribunal, and fairness to the opposing party and counsel. This article will examine some of the ethical issues raised by client dishonesty.

The sources of our professional obligation to uphold the truth are many. For example:

• The Rules of Professional Conduct require truthfulness in the presentation of evidence. Rules 3.3 and 3.4 prohibit a lawyer from making a false statement of material fact, offering evidence that the lawyer knows to be false, or assisting a witness to testify alsely.
• Our oath as attorneys binds us to "do no falsehood, nor consent that any be done in the court, and if you know of any, that you will give knowledge thereof to the justices of he court(.)" RSA 311:6.
• The New Hampshire Supreme Court recently reiterated the importance of honesty to he functioning of our judicial system. Recognizing the damage to public confidence in our legal system when lawyers act otherwise, the Court admonished "every attorney at all times to be truthful." Kalil's Case, 773 A.2d 647, 648 (N.H. 2001).

Lawyers are more than merely gladiators blindly advancing client interests. They have an important role in ensuring the integrity of our judicial system. Thus, a lawyer cannot turn a blind eye to fibs and prevarications, even if the client is the source.

Lawyers frequently have reservations about aspects of a client's story. Yet people often recall events differently over time. A faulty memory does not necessarily identify a liar. The Restatement (3d) of the Law Governing Lawyers acknowledges this distinction and permits the lawyer some leeway: Only a "firm factual basis" equals actual knowledge of falsity and compels action by the lawyer. Mere suspicion may not rise to the level of actual knowledge.

Under Rule 3.3 and the Restatement, a lawyer is free to deny a client's wishes and may also decline to offer evidence that the lawyer reasonably believes is false. The ABA Model Code Comments state that "[o]ffering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of the evidence and thus impair the lawyer's effectiveness as an advocate."

Lawyers are taught to present their client's case or interests with persuasive force, and the "zealous advocate" is frequently touted as the exemplar to follow. That duty is qualified, however, by the duty of candor to the tribunal. As noted in the ABA Model Code Comments to Rule 3.3:

• An assertion on the lawyer's own knowledge, in an affidavit or in open court, may properly only be made when the lawyer knows the assertion to be true or believes it to be true, based on a reasonable inquiry.
• The failure to make a disclosure, under particular circumstances, may be the equivalent of an affirmative misrepresentation.
• The obligation to avoid assisting a client in fraudulent conduct also applies to litigation. A misleading argument on the law - including a failure to bring directly adverse authority to the attention of the court - is a misrepresentation of fact and a violation of the professional conduct rules.
• A lawyer must refuse to offer false evidence offered by a non-client.
• When the client offers evidence that the lawyer knows to be false, the lawyer must seek to persuade the client to correct the situation. The lawyer bears the responsibility to rectify this state of affairs. The attorney's belief that the amount of false evidence is "insignificant" does not negate the improper and unethical nature of the act. Jones' Case (1993) 137 N.H. 351.

When faced with a choice between deceiving the tribunal and participating in the offering of false evidence, the lawyer must reveal the deception, even if this can result in the loss of the case for the client and perhaps expose the client to perjury - at least in a non-criminal matter. The lawyer therefore should advise the client in advance of the possible consequences of offering false evidence.

The Rules require an attorney to take affirmative steps once he or she learns that material false evidence has been presented. An attorney was present during a deposition during which the client testified to facts and circumstances that the attorney knew to be inaccurate. By failing to correct the record or counseling his client to do so, the lawyer violated his ethical obligations. In re Feld, 144 N.H. 131 (1999).

The level of falsity involved in testimony can vary widely between honest mistakes and active deceit. Where a lawyer in a civil matter has actual knowledge that a client or witness is lying, the lawyer must refuse to offer that evidence. Moreover, our professional conduct obligations compel us to take reasonable remedial measures to correct errors. The personal exposure attorneys risk from lying clients and witnesses provides a separate, compelling motivation - in addition to basic morality - to take steps to avoid false evidence and to correct the record, once it exists.

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