Head III

I have completed the chapter on Professional Conduct in the textbook. English rules seem to be more complicated because of the details and the many exceptions.

In England, a lawyer's (solicitor) professional conduct is basically governed by the Solicitors' Code of Conduct 2007 (Code). In the State of New York, an attorney's professional conduct is governed by the New York Rules of Professional Conduct (Effective April 1, 2009) (NY Rules).

Here is an unscientific comparsion. The Solicitors' Code of Conduct has about 25 rules. The Guidance Notes are not part of the Code. The whole thing, together with the Guidance note is about 256 pages. The NY Rules has about 8 rules, with each rule containing multiple sub-rules. The comments are not part of the NY Rules. An unabridged copy of the NY Rules (with comments) covers 190 pages.

Lets take a closer look. NY Rule 3.3, Conduct Before a Tribunal, subsection (a)(3):

A lawyer shall not knowingly offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Subsection (c) further states that the duty mentioned above applies even if compliance requires disclosure of information otherwise protected by Rule 1.6 [Confidentiality of Information].

Comment note 10 explains:

A lawyer who has offered or used material evidence in the belief that it was true may subsequently come to know that the evidence is false. Or, a lawyer may be surprised when the lawyer’s client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations, or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. The advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence. If that fails, the advocate must take further remedial action. If withdrawal from the representation is not permitted or will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal confidential information that otherwise would be protected by Rule 1.6. It is for the tribunal then to determine what should be done, such as making a statement about the matter to the trier of fact, ordering a mistrial, taking other appropriate steps or doing nothing.

(Emphasis added).

Compare with the Solicitors' Code of Conduct, Rule 11.01(1): "[A solicitor] must never deceive or knowingly or recklessly mislead the court."

Guidance Note 12 states:
Rule 11.01 makes a distinction between deceiving the court, where knowledge is assumed, and misleading the court, which could happen inadvertently. You would not normally be guilty of misconduct if you inadvertently misled the court. However, if during the course of proceedings you become aware that you have inadvertently misled the court, you must, with your client's consent, immediately inform the court. If the client does not consent you must stop acting. Rule 11.01 includes attempting to deceive or mislead the court.

England's Code seems to allow a Solicitor to withdraw from representation and the duty ends there. However, under NY Rules, an attorney's duty to court does not end by the attorney's withdrawal, if it will not undo the effect of false evidence. The attorney in that situation is required to reveal the information to court even if it was obtained in confidence.