ABSTRACT

When a lawyer knows that a non-client witness has testified falsely, the lawyer had a duty to take reasonable remedial measures notwithstanding the duty of confidentiality. If the lawyer learns of the falsity after the conclusion of the testimony but before the proceeding is concluded, and if the testimony was material, then the lawyer still had a duty to take reasonable remedial measures to correct the false testimony. In deciding whether the lawyer knows the testimony is false, the lawyer should use a “firm basis in objective fact” test recognizing that knowledge may be inferred from the circumstances.

ANNOTATIONS:

  • A lawyer has an important duty to not offer false testimony and to take remedial action if the lawyer learns that false testimony has been presented. N.H. R. Prof. Cond. 3.3.
  • The duty only applies when the lawyer “knows” the testimony is false. N.H. Rs. Prof. Cond. 3.3(a)(1), 3.3(a)(3).
  • Knowledge may be inferred from the circumstances, but the duty is not implicated by a mere suspicion or even a personal belief, short of actual knowledge, that the witness’s testimony is false. N.H. R. Prof. Cond. 3.3 2004 ABA Model Comment [8]; N.H. R. Prof. Cond. 1.0(f).
  • When the lawyer learns after the fact that testimony was false, the duty to take remedial measures only applies if the testimony was “material.” N.H. Rs. Prof. Cond. 3.3(a)(1), 3.3(a)(3).
  • The duty to not offer false testimony terminates “at the conclusion of the proceeding.” N.H. R. Prof. Cond. 3.3(d); 2004 ABA Model Code Comment [10].

Read More

By the NHBA Ethics Committee

This opinion was submitted for publication to the NHBA Board of Governors at its Thursday, November 20, 2025 meeting.