Ethics Opinion 392

Relationship Between Rules 3.3(d) and 1.6(d) in Civil Matters

A Bar member has asked the Committee to clarify the relationship between Rule 3.3(d) (Candor to the Tribunal) and Rule 1.6(d) (Confidentiality of Information) of the D.C. Rules of Professional Conduct in civil cases. The question is whether, if a client testifies falsely during a proceeding (such as during a deposition), the rules require the client’s lawyer to disclose the client’s false testimony to the tribunal. 

As is often the case, the answer is “it depends.” Rule 3.3(d) requires a lawyer who “receives information clearly establishing” that a client has perpetrated a fraud on the tribunal to take “reasonable remedial measures, including disclosure to the tribunal if necessary, to the extent disclosure is permitted by Rule 1.6(d).” The critical limiting phrase is “to the extent disclosure is permitted by Rule 1.6(d).”

A lawyer’s duty of confidentiality to the client is primary, and Rule 1.6(d) operates, in part, as a carefully drawn exception to the requirements of Rule 3.3(d). Relevant to the issue here, disclosure is required only when the client has used or is using the lawyer’s services to further a fraud on the tribunal, and only if the lawyer knows of the fraud and disclosure is “reasonably necessary” to prevent, mitigate, or rectify reasonably certain substantial injury to the financial or property interests of another. The fact that a client testifies falsely in a deposition or hearing does not, standing alone, jettison the usual requirement that the lawyer protect the client’s confidences and secrets.¹

This opinion addresses whether Rule 3.3(d)’s duty of candor to the tribunal “swallows” Rule 1.6(d)’s protections. We conclude that it does not. Rule 3.3(d) obligates lawyers to take remedial measures in certain circumstances when they have actual knowledge of client fraud, but any disclosure to the tribunal is strictly limited by the conditions set forth in Rule 1.6(d).

Applicable Rules

• Rule 1.0 (Terminology)
• Rule 1.4 (Communication)
• Rule 1.6 (Confidentiality of Information)
• Rule 1.16 (Declining or Terminating Representation)
• Rule 3.3 (Candor to Tribunal)

Inquiry

Whether a lawyer’s Rule 3.3(d) duty of candor to the tribunal in a civil matter effectively overrides the confidentiality protections of Rule 1.6(d) when the lawyer knows that the client has testified falsely during the proceeding.

Discussion

D.C. Rule of Professional Conduct 3.3(d) states:

A lawyer who receives information clearly establishing that a client has, in the course of the representation, perpetrated a fraud upon a tribunal shall promptly take reasonable remedial measures, including disclosure to the tribunal if necessary, to the extent disclosure is permitted by Rule 1.6(d).²

Rule 1.6(d) provides:

When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary: (1) to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or (2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.

A. Rule 3.3(d) Operates Within Rule 1.6(d) 

Under the text of Rule 3.3(d), disclosure is not automatic since the rule expressly incorporates the limitations set forth in Rule 1.6(d). Thus, a lawyer may disclose confidential client information only when all of the following conditions are met: (1) the lawyer receives information clearly establishing that the client has perpetrated a fraud upon the tribunal; (2) the client has used or is using the lawyer’s services to further the fraud upon the tribunal; (3) the lawyer has exhausted reasonable remedial measures short of disclosure, such as withdrawing the false evidence; and 4) disclosure is reasonably necessary to prevent or rectify fraud that is reasonably certain to result in substantial injury to another’s financial or property interests. Even then, disclosure must be strictly limited to what is necessary to remedy the fraud. See Rule 1.6(d), cmt. 21 (“In any case, a disclosure adverse to a client’s interest should be no greater than the lawyer reasonably believes is necessary to accomplish the purpose.”)³

Comment 17 to Rule 1.6 describes the reasoning behind the disclosure obligations embedded in the rule. In cases where the client is furthering a crime or fraud (to the tribunal or otherwise), “the client’s usual expectation of confidentiality is not warranted because the client has abused the lawyer-client relationship by using the lawyer’s services to further a crime or fraud.” Therein lies the “limited exception” to client confidentiality—in which the lawyer is permitted “to reveal information to the extent reasonably necessary to enable” the prevention of the client from committing the crime or fraud, should it be “reasonably certain to result in substantial injury to the financial or property interests of another.” 

• 1. What Counts as “Using” the Lawyer’s Services?

A threshold question under Rule 1.6(d) is whether the client “has used or is using the lawyer’s services to further a crime or fraud.” Comments 4 and 5 to Rule 3.3 shed light on when a lawyer’s services are deemed to be “used” in a manner that triggers the Rule’s exceptions. The comments distinguish between situations where the lawyer knowingly offers false evidence, or the lawyer knows after-the-fact that the client has testified falsely, and those where the lawyer merely represents a client who has engaged in misconduct outside the representation. The comments recognize that the conflict between the lawyer’s duty of candor and duty of confidentiality arises only when false evidence is offered by the client in the proceeding with the lawyer’s knowledge. In other words, a lawyer’s services are not “used” to further a fraud merely because the client has committed a past act of dishonesty or made false statements unrelated to the formal presentation of evidence.

A client’s spontaneous false testimony—such as a misstatement made during direct or cross-examination—does not, by itself, constitute “using” the lawyer’s services to further a crime or fraud. The lawyer has not “offered” or assisted in presenting that evidence. However, if the lawyer knows the testimony is false and the client refuses to correct it, continued advocacy on the client’s behalf may transform otherwise passive representation into “use” of the lawyer’s services to perpetuate a fraud on the tribunal. In such circumstances, the lawyer must take reasonable remedial measures to correct the fraud, which may include revealing confidences, if necessary. See Rule 1.6, cmts. 5, 17. For example, if the client refuses to correct the false testimony and the lawyer withdraws (or the client terminates the lawyer’s services), since the lawyer’s services were not used to further the fraud, the lawyer should not disclose the false testimony or other confidences or secrets of the client to the tribunal. If the Court were to deny the lawyer’s motion to withdraw, however, and where the other requirements of Rule 1.6(d) are met, some disclosure will be required to prevent or mitigate the client’s ongoing fraud on the tribunal.

• 2. Actual Knowledge is Required

Comment 6 to Rule 3.3 underscores that a lawyer must know the client’s testimony is false before the duty to pursue remedial measures is triggered: “The prohibition against offering false evidence applies only if the lawyer knows that the evidence is false.” In Sigma-Tau Industrie Farmaceutiche Riunite S.p.A. v. Lonza Ltd., 48 F. Supp. 2d 16 (D.D.C. 1999), the Court rejected a claim that defense counsel violated Rule 3.3 by failing to correct false deposition testimony. The Court emphasized that Rule 3.3 requires proof of actual knowledge of falsity, not mere suspicion. Id. at 20.⁴

• 3. Remedial Measures Come First

Comment 5 to Rule 3.3 emphasizes that, when false evidence is offered by the client, lawyers should take other remedial measures before making any disclosure of client confidential information. “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.” Rule 3.3, cmt. 5. The exceptions under Rule 1.6(d), however, must still be met: “[t]he lawyer may not, . . .disclose information otherwise protected by Rule 1.6, unless the client has used the lawyer’s services to further a crime or fraud and disclosure is permitted by Rule 1.6(d).” Rule 3.3, cmt. 8 (emphasis added).

• 4. Disclosure Must Be Narrowly Tailored

Comment 18 to Rule 1.6 places our hypothetical into the ambit of paragraph (d)(2), situations where the fraud on the tribunal is “on-going or completed such that complete prevention is not an option.” In that case, any disclosure should be limited “to the extent necessary to enable the affected persons to prevent or mitigate reasonably certain losses or to attempt to recoup their losses.” Id.; see also Rule 1.6, cmt. 21. 

In the Bar member’s hypothetical, several conditions must be satisfied before disclosure is even considered. The lawyer must have actual knowledge that the client’s statement is false, and, after remonstrating with the client⁵, the client must refuse to correct the record. Even then, the lawyer should not disclose the entirety of the client’s fraudulent conduct. Instead, the disclosure should be narrow and consist of notifying the tribunal that the lawyer has information clearly establishing that the client’s testimony on a specific point—for example, the source of certain funds—was false and must be corrected. Such disclosure would be strictly limited to the falsehood at issue and the correction necessary to prevent or mitigate the reasonably certain financial harm to another.

Conclusion

Rule 3.3(d) does not override Rule 1.6(d). Instead, it operates within its boundaries. Disclosure of client fraud to a tribunal is permitted only in exceptional circumstances, where the lawyer has actual knowledge of the fraud, the client used or is using the lawyer’s services to further the fraud, all other remedial measures have failed, and disclosure is reasonably necessary to prevent or rectify substantial financial or property harm to another that is reasonably certain to result. Even then, under Rule 1.6(d) a lawyer may seek to withdraw rather than disclose client confidences to the tribunal if the client has not used the lawyer’s services to further the fraud. By adhering to this narrow reading, the Rules preserve the integrity of the lawyer-client relationship while ensuring that candor to the tribunal is maintained as appropriate.

Published March 2026

1. Rule 3.3, cmt. 1, makes clear that the duty of candor to the tribunal applies to depositions: “The rule 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. Rule 1.0 defines “Fraud” as “conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive.” “Tribunal” includes courts, binding arbitration proceedings, or any “body acting in an adjudicative capacity,” in other words, “when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter.”

3. The difference in language between Rules 1.6(d) (“may reveal”) and 3.3(d) (“shall promptly take reasonable remedial measures”) reflects the different purposes of the two rules. Rule 1.6(d) addresses situations where a lawyer’s services have been used to further a crime or fraud that may or may not have been directed at a tribunal. In such circumstances, disclosure is discretionary because other steps—such as withdrawal—may alone adequately address the lawyer’s ethical responsibilities. See Rule 1.16(a)(1), (b)(2). By contrast, Rule 3.3(d) involves fraud on a tribunal, implicating the integrity of the adjudicative process. Once that condition is met the lawyer must withdraw or take other remedial steps, including disclosure to the tribunal if necessary, to the extent such steps are permitted under Rule 1.6(d). Importantly, however, under Rule 1.6(d), if the lawyer’s services were not used to further the fraud on the tribunal, or no financial harm will occur to another as a result of the false testimony, then client confidences and secrets should not be revealed.

4. This knowledge requirement distinguishes the evidentiary crime-fraud exception to the attorney-client privilege from the ethical duties imposed by Rules 1.6(d) and 3.3. The D.C. Court of Appeals has explained that the crime-fraud exception applies “where the attorney is duped into unwittingly facilitating the client’s unlawful scheme.” In re Public Defender Service, 381 A.2d 890, 909 (D.C. 2003). In that circumstance, the privilege is forfeited even if the lawyer lacked knowledge of the client’s improper purpose. Under the D.C. Rules of Professional Conduct, however, the duty of candor to the tribunal arises only when the lawyer actually knows that a fraud has occurred.

5. Rule 1.4(b) requires lawyers to explain an issue in sufficient detail to allow the client to make informed decisions: “A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”