RULE 3.3
                     CANDOR TOWARD THE TRIBUNAL


  (a) A lawyer shall not knowingly:

     (1) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the
tribunal by the lawyer;

     (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
unless such disclosure is prohibited by Rule 1.6;

     (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.

  (b) The duties stated in paragraph (a) continue to the conclusion of the proceeding.

  (c) If the lawyer has offered material evidence and comes to know of its
falsity, the lawyer shall promptly disclose this fact to the tribunal
unless such disclosure is prohibited by Rule 1.6.

  (d) If the lawyer has offered material evidence and comes to know of its
falsity, and disclosure of this fact is prohibited by Rule 1.6, the lawyer
shall promptly make reasonable efforts to convince the client to consent
to disclosure. If the client refuses to consent to disclosure, the lawyer
may seek to withdraw from the representation in accordance with Rule 1.16.

  (e) A lawyer may refuse to offer evidence that the lawyer reasonably
believes is false.

  (f) In an ex parte proceeding, a lawyer shall inform the tribunal of all
material facts known to the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts are adverse.

Comment

  [1] [Washington revision] This Rule governs the conduct of a lawyer who
is representing a client in the proceedings of a tribunal. See Rule 1.0(m)
for the definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to
the tribunal's adjudicative authority, such as a deposition.

  [2] This Rule sets forth the special duties of lawyers as officers of
the court to avoid conduct that undermines the integrity of the
adjudicative process. A lawyer acting as an advocate in an adjudicative
proceeding has an obligation to present the client's case with persuasive
force. Performance of that duty while maintaining confidences of the
client, however, is qualified by the advocate's duty of candor to the
tribunal. Consequently, although a lawyer in an adversary proceeding is
not required to present an impartial exposition of the law or to vouch for
the evidence submitted in a cause, the lawyer must not allow the tribunal
to be misled by false statements of law or fact or evidence that the
lawyer knows to be false.

Representations by a Lawyer

  [3] [Washington revision] 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 Rule 3.1.
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.
There are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation prescribed
in Rule 1.2(d) not to counsel a client to commit or assist the client in
committing a fraud applies in litigation. Regarding compliance with Rule
1.2(d), see the Comment to that Rule. See also Comment [4] to Rule 8.4.

Legal Argument

  [4] 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
paragraph (a)(3), an advocate has a duty to disclose directly adverse
authority in the controlling jurisdiction that 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.

Offering Evidence

  [5] [Reserved.]

  [6] If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer should seek to
persuade the client that the evidence should not be offered. If the
persuasion is ineffective and the lawyer continues to represent the
client, the lawyer must refuse to offer the false evidence. If only a
portion of a witness's testimony will be false, the lawyer may call the
witness to testify but may not elicit or otherwise permit the witness to
present the testimony that the lawyer knows is false.

  [7] [Washington revision] The duties stated in paragraphs (a) apply to
all lawyers, including defense counsel in criminal cases. In some
jurisdictions other than Washington, however, courts have required counsel
to present the accused as a witness or to give a narrative statement if
the accused so desires, even if counsel knows that the testimony or
statement will be false. The obligation of the advocate under the Rules of
Professional Conduct is subordinate to such requirements. See State v.
Berrysmith, 87 Wn. App. 268, 944 P.2d 397 (1997), review denied, 134 Wn.2d
1008, 954 P.2d 277 (1998).

  [8] The prohibition against offering false evidence only applies if the
lawyer knows that the evidence is false. A lawyer's reasonable belief that
evidence is false does not preclude its presentation to the trier of fact.
A lawyer's knowledge that evidence is false, however, can be inferred from
the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve
doubts about the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood.

  [9] [Reserved.]

Remedial Measures

  [10] [Reserved.]

  [11] The disclosure of a client's false testimony 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 Rule 1.2(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.

Preserving Integrity of Adjudicative Process

  [12] [Washington revision]  Lawyers have a special obligation to protect
a tribunal against criminal or fraudulent conduct that undermines the
integrity of the adjudicative process, such as bribing, intimidating or
otherwise unlawfully communicating with a witness, juror, court official
or other participant in the proceeding, unlawfully destroying or
concealing documents or other evidence or failing to disclose information
to the tribunal when required by law to do so.

Duration of Obligation

  [13] A practical time limit on the obligation to rectify false evidence
or false statements of law and fact has to be established. The conclusion
of the proceeding is a reasonably definite point for the termination of
the obligation. A proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on appeal or the
time for review has passed.

Ex Parte Proceedings

  [14] 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 any 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.

Withdrawal

  [15] [Washington revision] Normally, a lawyer's compliance with the duty
of candor imposed by this Rule does not require that the lawyer withdraw
from the representation of a client whose interests will be or have been
adversely affected by the lawyer's disclosure. The lawyer may, however, be
required by Rule 1.16(a) to seek permission of the tribunal to withdraw if
the lawyer's compliance with this Rule's duty of candor results in such an
extreme deterioration of the client-lawyer relationship that the lawyer
can no longer competently represent the client. See also Rule 1.16(b) for
the circumstances in which a lawyer will be permitted to seek a tribunal's
permission to withdraw. In connection with a request for permission to
withdraw that is premised on a client's misconduct, a lawyer may reveal
information relating to the representation as permitted by Rule 1.6.


[Amended effective September 1, 2006.]