Confidentiality Comes First When Clients Give False Deposition Testimony

Clients dissembling in depositions place their lawyers in a difficult position, a situation we’ve noted in a prior article. Does the lawyer’s obligation to preserve client confidences protect the client’s false statement from immediate exposure? Or does the lawyer’s duty of candor to the tribunal override any ethical obligations to the client?

D.C. Bar Ethics Opinion 392, published last week, addresses exactly this scenario. The D.C. Bar ethics experts described the relationship between Rule 3.3(d) (Candor to the Tribunal) and Rule 1.6(d) (Confidentiality of Information) in the D.C. Rules of Professional Conduct. The ethics opinion’s core message is this: A client’s false deposition testimony does not automatically trigger a duty to disclose. Confidentiality remains the default. However, when specific conditions converge, disclosure becomes not only permissible — it becomes required.

A client’s false deposition testimony does not automatically trigger a duty to disclose. Confidentiality remains the default.

Confidentiality Is the Default Position

D.C. Rule 3.3(d) states that a lawyer who receives information “clearly establishing” that a client has perpetrated a fraud on the tribunal must “promptly take reasonable remedial measures, including disclosure to the tribunal if necessary, to the extent disclosure is permitted by Rule 1.6(d).” Opinion 392 makes clear that Rule 3.3(d) does not operate independently of Rule 1.6(d). Disclosure to the tribunal should not be made unless all five of the following conditions are met:

1. The lawyer receives information clearly establishing that the client committed fraud on the tribunal.
2. The client used or is using the lawyer’s services to further that fraud.
3. The lawyer has exhausted other reasonable remedial measures before considering disclosure.
4. Disclosure is reasonably necessary to prevent or rectify fraud.
5. The fraud, if not prevented, will cause substantial injury to another’s financial or property interests.

If any of the five conditions above are unmet, the lawyer must protect the client’s confidences and secrets. “The fact that a client testifies falsely in a deposition,” the opinion states, “does not, standing alone, jettison the usual requirement that the lawyer protect the client’s confidences and secrets.”

For lawyers defending their clients during depositions, successfully navigating this ethical framework may prove challenging. None of the five conditions that, together, trigger the duty of candor may be immediately obvious to the lawyer. All of them are somewhat nuanced considerations and not clear-cut at all.

For example, when are a lawyer’s services “used” to further a crime or fraud? A client’s spontaneous false statement during cross-examination does not, by itself, constitute use of the lawyer’s services.

Turning to the question of whether the client has made a false statement, Opinion 392 states that lawyers who merely suspect false testimony are under no duty to violate client confidentiality. Doubts about whether a client’s statement was true should be resolved in the client’s favor. The drafting committee notes to Rule 3.3 direct the rule at “obvious falsehood[s]” — not ambiguous ones.

Before any disclosure of client confidences can ethically occur, the lawyer must first exhaust all reasonable alternatives. Opinion 392 identifies the proper sequence:

• The lawyer must counsel the client to correct the record voluntarily.
• The lawyer must explain to the client the consequences of continued false testimony.
• If the client clings to false testimony are being counseled to correct it, the lawyer must attempt to withdraw from the representation.
• If withdrawal is denied and other Rule 1.6(d) conditions are met, only then will disclosure be necessary.

Finally, if disclosure of a client’s false testimony is necessary, any disclosure of client confidences must be as narrow as possible.

And yes, depositions are governed by these ethical rules. D.C. Bar professional ethics rules (Rule 3.3, comment 1) provide that the lawyer’s duty of candor to the tribunal applies to depositions: “The rule also applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.” The American Bar Association’s Model Rules of Professional Conduct contain the same language so, in jurisdictions that follow the ABA rules, the lawyer’s duty of candor is implicated during depositions.

Rules Vary Among States

The D.C. Bar’s confidentiality-first approach is not necessarily the rule in other jurisdictions, so litigators will want to ensure they are well-versed in their local rules. The ABA’s interpretation of its model rules (on which the D.C. rules are based) appears to require lawyers to remedy false testimony rather than merely withdraw.

ABA Formal Ethics Opinion 93-376 (1993) concludes that once a lawyer learns a client committed perjury, continued representation “without rectification or disclosure would assist the client in committing a crime or fraud.” Under the model rules, compliance with Rule 3.3’s candor duty applies “even if compliance requires disclosure of information otherwise protected by Rule 1.6.” In the ABA framework, candor to the tribunal ultimately triumphs.

Similarly, the New York County Lawyers Association (NYCLA) Formal Opinion 741 (2010) also requires lawyers to take remedial measures when confronted with false client testimony, withdrawing an earlier opinion that had permitted lawyers to stay silent about false deposition testimony while maintaining client confidentiality. Under NYCLA’s current analysis, if remonstration fails, the lawyer must take further remedial measures — including disclosure to the tribunal — and cannot simply withdraw while keeping the false testimony secret. “If remonstration is not effective,” the opinion states, “the attorney must disclose the false testimony.”

State bar ethics opinions in Alabama and North Carolina also oblige lawyers in those jurisdictions to remediate false testimony, if the client refuses to correct it, by disclosing it to the tribunal. The Alabama Disciplinary Commission has advised, in Opinion 2009-01, that when a lawyer knows a client committed perjury and the client refuses to correct it, the lawyer must disclose the false testimony to the tribunal — regardless of whether the proceeding is civil or criminal. Ethics advice published by the North Carolina State Bar appears to require disclosure of false testimony to the tribunal as a last resort after other remedial measures fail.

By contrast, ethics guidance from the State Bar of Texas found no duty to remediate false deposition testimony. In Opinion 692 (2021), the Texas Professional Ethics Committee declined to find a categorical duty to correct a client’s false deposition testimony, while affirming that the lawyer may not use the false testimony in a motion or at trial. This approach treats deposition testimony more loosely than in-court testimony — a position that one expert has criticized as placing lawyers in an untenable position at trial.

Regardless of jurisdiction, when possibly false testimony is given, the lawyer’s obligation to weigh client confidentiality considerations against the duty of candor to the tribunal calls for quick and nuanced thinking on a wide range of issues. The task of applying these ethical considerations thoughtfully during the often-contentious environment of a discovery deposition will test even the nimblest of litigators.