United States District Court
Northern District Of Illinois
LR83.53.3. Conduct Before a Tribunal
(a) In appearing in a professional capacity before a tribunal, a lawyer shall not:
(1) make a statement of material fact or law to a tribunal which the lawyer knows
or reasonably should know is false;
(2) fail to disclose to a tribunal a material fact known to the lawyer 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;
(4) offer evidence that the lawyer knows to be false, or if the lawyer has offered
material evidence and comes to know of its falsity, the lawyer shall take
reasonable remedial measures;
(5) participate in the creation or preservation of evidence when the lawyer knows
or reasonably should know the evidence is false;
(6) counsel or assist the client in conduct the lawyer knows to be illegal or
(7) engage in other illegal conduct or conduct in violation of these rules;
(8) fail to disclose the identities of the clients represented and of the persons
who employed the lawyer unless such information is privileged or irrelevant;
(9) intentionally degrade a witness or other person by stating or alluding to
personal facts concerning that person which are not relevant to the case;
(10) in trial, allude to any matter that the lawyer does not reasonably believe is
relevant or that will not be supported by admissible evidence, assert personal
knowledge of facts in issue except when testifying as a witness, or state a
personal opinion as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant or the guilt or innocence of an accused, but a
lawyer may argue, on analysis of evidence, for any position or conclusion with
respect to the matter stated herein;
(11) refuse to accede to reasonable requests of opposing counsel that do not
prejudice the rights of the client;
(12) fail to use reasonable efforts to restrain and to prevent clients from doing
those things that the lawyer ought not to do;
(13) suppress any evidence that the lawyer or client has a legal obligation to
reveal or produce;
(14) advise or cause a person to become unavailable as a witness by leaving the
jurisdiction or making secret their whereabouts within the jurisdiction; or
(15) pay, offer to pay, or acquiesce in the payment of compensation to a witness
contingent upon the content of the witness’ testimony or the outcome of the case, but a lawyer may advance, guarantee, or
acquiesce in the payment of expenses reasonably incurred in attending or
testifying, and a reasonable fee for the professional services of an expert witness.
(b) The duties stated in section (a) are continuing duties and apply even if
compliance requires disclosure of information otherwise protected by LR83.51.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is
(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.
Committee Comment. General. The advocate’s task is to present the client’s case with persuasive force. Performance of that duty while maintaining
confidences of the client is qualified by the advocate’s duty of candor to the tribunal. However, an advocate does not vouch for the
evidence submitted in a cause; the tribunal is responsible for assessing its
Representations by a Lawyer. 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. Compare LR83.53.1. However, an assertion purporting to he 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. There are
circumstances where failure to make a disclosure is the equivalent of an
affirmative misrepresentation. The obligation prescribed in LR83.51.2(d) not to
counsel a client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with LR83.51.2(d), see the Comment to that
rule. See also the Comment to LR83.58.4(b).
Misleading Legal Argument. Legal argument based on a knowingly false representation of law constitutes
dishonesty toward the tribunal. A lawyer is not required to make a disinterested
exposition of the law, but must recognize the existence of pertinent legal
authorities. Furthermore, as stated in section (a)(3), an advocate has a duty to
disclose directly adverse authority in the controlling jurisdiction which has not
been disclosed by the opposing party. The underlying concept is that legal
argument is a discussion seeking to determine the legal premises properly
applicable to the case.
False Evidence. When evidence that a lawyer knows to be false is provided by a person who is
not the client, the lawyer must refuse to offer it regardless of the client’s wishes.
When false evidence is offered by the client, however, a conflict may arise
between the lawyer’s duty to keep the client’s revelations confidential and the duty of candor to the court. Upon
ascertaining that material evidence is false, the lawyer should seek to persuade the
client that the evidence should not be offered or, if it has been offered, that
its false character should immediately be disclosed. If the persuasion is
ineffective, the lawyer must take reasonable remedial measures (in this respect, see
LR83.51.2 and LR83.51.6 and the discussion under the heading “Criminal, Fraudulent and Prohibited Transactions” in the Comment to LR83.51.2).
Except in the defense of a criminal accused, the rule generally recognized is
that if necessary to rectify the situation, an advocate must disclose the
existence of the client’s deception to the court or to the other party. Such a disclosure can result
in grave consequences to the client, including not only a sense of betrayal but
also loss of the case and perhaps a prosecution for perjury. But the
alternative is that the lawyer cooperate in deceiving the court, thereby subverting the
truth-finding process which the adversary system is designed to implement. See LR83.51.2(d). Furthermore, unless it is clearly understood that the lawyer
will act upon the duty to disclose the existence of false evidence, the client
can simply reject the lawyer’s advice to reveal the false evidence and insist that the lawyer keep silent.
Thus the client could in effect coerce the lawyer into being a party to fraud
on the court.
Perjury by a Criminal Defendant. Whether an advocate for a criminally accused has the same duty of disclosure
has been intensely debated. While it is agreed that the lawyer should seek to
persuade the client to refrain from perjurious testimony, there has been dispute
concerning the lawyer’s duty when that persuasion fails. If the confrontation with the client occurs
before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may
not be possible, however, either because trial is imminent or because the
confrontation with the client does not take place until the trial itself, or because
no other counsel is available.
The most difficult situation, therefore, arises in a criminal case where the
accused insists on testifying when the lawyer knows that the testimony is
perjurious. The lawyer’s effort to rectify the situation can increase the likelihood of the client’s being convicted as well as opening the possibility of a prosecution for
perjury. On the other hand, if the lawyer does not exercise control over the proof,
the lawyer participates, although in a merely passive way, in deception of the
Three resolutions of this dilemma have been proposed. One is to permit the
accused to testify by a narrative without guidance through the lawyer’s questioning. This compromises both contending principles; it exempts the
lawyer from the duty to disclose false evidence but subjects the client to an
implicit disclosure of information imparted to counsel. Another suggested
resolution, of relatively recent origin, is that the advocate be entirely excused from
the duty to reveal perjury if the perjury is that of the client. This is a
coherent solution but makes the advocate a knowing instrument of perjury.
The other resolution of the dilemma is that the lawyer must reveal the client’s perjury if necessary to rectify the situation. A criminal accused has a
right to the assistance of an advocate, a right to testify and a right of
confidential communication with counsel. However, an accused should not have a right to
assistance of counsel in committing perjury. Furthermore, an advocate has an
obligation, not only in professional ethics but under the law as well, to avoid
implication in the commission of perjury or other falsification of evidence. See LR83.51.2(d).
Remedial Measures. If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially.
If that fails, the advocate should seek to withdraw if that will remedy the
situation. If withdrawal will not remedy the situation or is impossible, the
advocate should make disclosure to the court. It is for the court then to determine
what should be done—making a statement about the matter to the trier of fact, ordering a mistrial,
or perhaps nothing. If the false testimony was that of the client, the client
may controvert the lawyer’s version of their communication when the lawyer discloses the situation to
the court. If there is an issue whether the client has committed perjury, the
lawyer cannot represent the client in resolution of the issue, and a mistrial may
be unavoidable. An unscrupulous client might in this way attempt to produce a
series of mistrials and thus escape prosecution. However, a second such
encounter could be construed as a deliberate abuse of the right to counsel and as such
a waiver of the right to further representation.
Constitutional Requirements. It must always be kept in mind that the principles expressed in LR83.53.3 and
this Comment are subject to any constitutional constraints that are imposed on
defense counsel in criminal cases by the provisions as to due process and the
defendant’s right to counsel.
Duration of Obligation. A practical time limit on the obligation to rectify the presentation of false
evidence has to be established. The conclusion of the proceeding is a
reasonably definite point for the termination of the obligation.
Refusing to Offer Proof Believed to Be False. Generally speaking, a lawyer has authority to refuse to offer testimony or
other proof that the lawyer believes is untrustworthy. Offering such proof may
reflect adversely on the lawyer’s ability to discriminate in the quality of evidence and thus impair the lawyer’s effectiveness as an advocate. This consideration too is subject to
constitutional requirements governing the right to counsel in criminal cases.
Ex Parte Proceedings. Ordinarily, an advocate has the limited responsibility of presenting one side
of the matters that a tribunal should consider in reaching a decision; the
conflicting position is expected to be presented by the opposing party. However, in
an ex parte proceeding, such as an application for a temporary restraining order, there is
no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just consideration.
The lawyer for the represented party has the correlative duty to make
disclosures of material facts known to the lawyer and that the lawyer reasonably believes
are necessary to an informed decision.