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Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 3 of 29
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made to the tribunal by the lawyer; (2) fail to disclose to the tribunal controlling
legal authority known to the lawyer to be directly adverse to the position of the
client and not disclosed by opposing counsel; or (3) offer or use evidence that the
lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by
the lawyer has offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter, that the lawyer
reasonably believes is false.

(b) A lawyer who represents a client before a tribunal and who knows that a
person intends to engage, is engaging or has engaged in criminal or fraudulent
conduct related to the proceeding shall take reasonable remedial measures,
including, if necessary, disclosure to the tribunal.

8. Also relevant is New York Rule 3.5(d), which provides:

A lawyer shall reveal promptly to the court improper conduct by a member
of the venire or a juror, or by another toward a member of the venire or a juror or a
member of his or her family of which the lawyer has knowledge.

9. Each of these rules requires knowledge on the part of the lawyer, and that knowledge
must be “actual” knowledge. The standard is a subjective one. New York Rule 1.0(k) contains
this definition:

Knowingly, known, know, or knows denotes actual knowledge of
the fact in question. A person’s knowledge may be inferred from circumstances.¹

10. A leading Second Circuit case addresses the knowledge requirement. In Doe v. Federal
Grievance Committee, 847 F.2d 57 (2nd Cir. 1988), a district judge in Connecticut disciplined a
lawyer who did not report his belief that an opposing witness had lied in a deposition. The
Connecticut (and the New York) rule at the time required a “lawyer who receives information
clearly establishing that...[a] person other than his client has perpetrated a fraud upon a tribunal

¹ I have also been asked to address the potential relevance of Rule 8.4(d) of the New York Rules, which
says that a “lawyer or law firm shall not...engage in conduct that is prejudicial to the
administration of justice.” This rule should not be read to expand Rule 3.3’s mens rea
requirement of knowledge. When the New York Rules of Professional Conduct were adopted to
replace the Code of Professional Responsibility, the courts chose the standard of “knowledge,”
the same standard as in the ABA Model Rules, to replace “clearly established,” which the Second
Circuit had already interpreted to mean “knowledge” (see ¶¶ 10-11 infra). When a specific and
considered rule requires knowledge, another and general rule should not be interpreted to
impose a duty based on a lower standard. There would be obvious notice and fairness interests
implicated in doing so.

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