An attorney discovers that a key witness has testified falsely. The attorney fails to take remedial action. Is the attorney subject to discipline?

An attorney discovers that a key witness has testified falsely. The attorney fails to take remedial action. Is the attorney subject to discipline?

• A. No, remedial action is optional.
• B. Yes, because the attorney has a duty to remedy false testimony.
• C. No, because the client acted in good faith.
• D. Yes, because all witnesses are presumed perjurers.

Answer: (B)

When a lawyer knows that a witness has testified falsely, the lawyer has a duty to take remedial action to correct the record. This obligation comes from the duty of candor to the tribunal and the prohibition on presenting or facilitating false evidence. The attorney should urge the client to rectify the false testimony, and, if necessary, seek to withdraw or otherwise cure the false evidence. If the client persists in presenting false testimony, the lawyer may need to disclose to the court to prevent aiding the fraud and, in extreme cases, take steps to withdraw. Failing to take these remedial actions disrupts the integrity of the proceedings and can subject the attorney to disciplinary action. The other options misstate the obligation: remedial action isn't optional, a client’s good faith doesn’t excuse the failure, and not all witnesses are presumed perjurers.

When a lawyer knows that a witness has testified falsely, the lawyer has a duty to take remedial action to correct the record. This obligation comes from the duty of candor to the tribunal and the prohibition on presenting or facilitating false evidence. The attorney should urge the client to rectify the false testimony, and, if necessary, seek to withdraw or otherwise cure the false evidence. If the client persists in presenting false testimony, the lawyer may need to disclose to the court to prevent aiding the fraud and, in extreme cases, take steps to withdraw. Failing to take these remedial actions disrupts the integrity of the proceedings and can subject the attorney to disciplinary action. The other options misstate the obligation: remedial action isn't optional, a client’s good faith doesn’t excuse the failure, and not all witnesses are presumed perjurers.