19.02. Duty to Disclose Adverse Facts [Rule 3.3(a)]

Rule 3.3(a) sets out two ethical obligations of a lawyer with regard to adverse facts – a prohibition and a mandate.  The prohibition is that a lawyer shall not knowingly “make a false statement of fact … to a tribunal . . .”  Therefore, a lawyer must be truthful when relaying the facts to a court.  No surprise there.  The mandate is to “correct a false statement of material fact … previously made to the tribunal by the lawyer.”  Therefore, if a lawyer makes false statement to the court and learns after making the statement that it is false (and material), the lawyer must take steps to correct the statement.  This rule covers a situation where the lawyer is making factual statements to the court based on their own personal knowledge, for example where the lawyer represents to the court that a trial date extension is needed because the lawyer is undergoing surgery.  If that is not true the lawyer has violated this rule.[1]  Short of these situations a lawyer does not have an obligation to disclose adverse facts – the adversarial system should uncover unfavorable facts.

Rene Hernandez was hired by Courtney Chester to have a 2001 battery conviction expunged so she could apply to nursing school.  However, Hernandez discovered that while she was charged with battery when she was 17, she turned 18 the day before her guilty plea.  Because she was 18 at the time of the plea, she did not qualify for expungement.  Hernandez contacted the state’s attorney asked for favorable consideration of the expungement petition because of her age.  Hernandez still filed the expungement paperwork stating:  “As [Chester] was only 17 at the time fo the plea and conviction, her plea and conviction should properly be voided.”  At the hearing on the motion, the trial judge noted the incorrect statement and referred Hernandez to the disciplinary authority.  Did the lawyer act unethically?  [In re Hernandez (Ill. 2019)]

Yes.  Hernandez knew that the statement regarding Chester’s age was false – yet she included it in the pleading.  The court found that the action was a violation of Rule 3.3(a)(1), knowingly making a false statement of fact to a tribunal.  Hernandez argued that she did not “know” that Chester was 18 at the time of the plea because she did not look at the date.  The hearing board rejected that argument.  In addition, the board found that Hernandez violate Rules 3.1 (pursuing a frivolous claim); 4.1(a) (making a false statement of material fact to a third party – the state attorney); and 8.4(c) (engaging in fraud, deceipt or misrepresentation by filing pleading with false statement about Chester’s age).

[1] ABA Rule 3.3, Comment [3](“An advocate is responsible for pleadings and other documents prepared for litigation, but is usually not required to have personal knowledge of matters asserted therein, for litigation documents ordinarily present assertions by the client, or by someone on the client’s behalf, and not assertions by the lawyer… However, an assertion purporting to be on the lawyer’s own knowledge, as in an affidavit by the lawyer or in a statement in open court, may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry.”).