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Proposed Rule 3.3. Proposed rule 3.3 is based on Model Rule 3.3, a version of which has
been adopted in every jurisdiction in the country. (See National Backdrop – Adoption of Model
Rule 3.3, below.) The Commission believes that the Model Rule approach regarding a lawyer’s
duty of candor is superior to the approach of current rule 5-200 (Trial Conduct) because it more
clearly identifies the kind of conduct that the rule is intended to regulate, an attribute preferable
in a disciplinary rule. For example, current rule 5-200(A) and (B) are nearly verbatim
transcriptions of the two clauses of Bus. & Prof. Code § 6068(d), a provision that has remained
virtually unchanged since the California Legislature adopted the Field Code in 1872.
Paragraph
(A) cautions a lawyer to “employ, for the purpose of maintaining the causes confided to the
lawyer, such means only as are consistent with the truth,” but provides no insight into what
“such means” are consistent with the truth, and thus what “means” are not. Similarly, paragraph
(B) prohibits a lawyer from “seeking to mislead the judge . . . by an artifice,” but does not clarify
what a prohibited “artifice” might be.
In sum, the Model Rule approach, under which specific prohibited conduct is identified, is
preferable in a disciplinary rule. The greater detail of the proposed rule should enhance
compliance by lawyers in performing the duties they owe the court as officers of the legal system,
as well as facilitate enforcement. The need for increased detail in the rule is particularly evident
regarding measures a lawyer is permitted to take to correct fraudulent or criminal conduct of
another in relation to a proceeding before a tribunal. That is because, contrary to Model Rule
jurisdictions under which duties under their versions of rule 3.3 trump a lawyer’s duty of
confidentiality, the text of proposed rule 3.3 expressly states that the lawyer’s duty to take
reasonable remedial measures is subordinate to California’s strict duty of confidentiality under
rule 1.6 and Bus. & Prof. Code § 6068(e).
Text of Rule 3.3. The proposed rule’s language, based on the Model Rule, provides a clearer
statement of what conduct is required and prohibited under the rule.
Paragraph (a)’s introductory clause incorporates a “knowledge” standard. The requirement of
known falsity is important from a practical as well as a policy standpoint. A rule that could be
violated by gross negligence would have an improper chilling effect on advocacy and could
render the lawyer a guarantor of the truth of the facts presented.
Subparagraph (a)(1) [based on Model Rule 3.3(a)(1)] provides that a lawyer shall not knowingly
“make a false statement of fact or law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.” A lawyer is on notice that the lawyer
may not knowingly make any false statement of fact or law or fail to correct a material false
statement of fact or law.
Subparagraph (a)(2) [derived from Model Rule 3.3(a)(2)], prohibits a lawyer from failing “to
disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be
directly adverse” to the client’s position. It states the lawyer’s duty to disclose to the tribunal
adverse legal authority in the controlling jurisdiction, which is preferable to the narrowly defined
duties in current rule 5-200(C) and (D). Nevertheless, to further clarify the provision’s intent, the
Commission recommends adding language from rule 5-200(C), which provides a lawyer shall not
Bus. & Prof. Code § 6068(d) provides it is the duty of an attorney:
(d) To employ, for the purpose of maintaining the causes confided to him or her those means only
as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an
artifice or false statement of fact or law.
The only change since 1872 has been to render the provision gender neutral.