ACTEC COMMENTARIES ON THE MODEL RULES OF PROFESSIONAL CONDUCT
MRPC 3.3
Candor toward the Tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.
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ACTEC COMMENTARY ON MRPC 3.3
A lawyer may not mislead the court with regard to any matter before it, including ex parte applications. In particular, a lawyer may not assist a client by presenting to the court any petition, accounting, or other document or evidence that is false or fails to disclose a material fact if disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. See Pierce v. Lyman, summarized in the Annotation following the ACTEC Commentary on MRPC 1.2 (Scope of Representation). A lawyer should not construe too narrowly the scope of the term "criminal or fraudulent". In the context of the lawyer-client communications privilege, a client's fraudulent conveyance of property may be a fraudulent act that must be disclosed by the lawyer to a court. In re Grand Jury Subpoena Duces Tecum Dated September 15, 1983, 731 F.2d 1032 (2d Cir. 1984). Similarly, frustrating an order of the court may involve a fraud, justifying disclosure of confidential information. Fellerman v. Bradley, 493 A.2d 239 (N.J. 1985). This rule is consistent with MRPC 1.2(d) (Scope of Representation), which prohibits a lawyer from assisting a client in criminal or fraudulent conduct, and MRPC 4.1 (Truthfulness in Statements to Others), which prohibits the lawyer from making false statements to any third party. Lawyers for court-appointed fiduciaries should consider the extent to which MRPC 3.3 may require them to disclose to the court any criminal or fraudulent conduct by the fiduciary.
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