Science and the Lawyer’s Ethical Duty of Candor to the Tribunal

ABA Model Rule of Professional Conduct 3.3(a)(1) forbids a lawyer from making “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.” Model Rule 3.3(a)(3) further forbids a lawyer from “offer[ing] evidence that the lawyer knows to be false.” An interesting question arises as to whether introducing viewpoints the lawyer knows are either not supported by existing scientific evidence or are plainly pseudoscientific violates this duty. The thrust of the evidence rule is that the lawyer must actually know that the evidence is false; a reasonable belief is not alone enough. Thus, the question becomes: when a lawyer knows that a scientific theory of the case lacks any hard evidence or that it would fail standard academic inquiry, does the lawyer know that the evidence is false, or does the attorney simply have a reasonable belief thereof? This is a fairly wide loophole when it comes to evidence that requires scientific analysis, but nevertheless is lacking key hallmarks of scientific rigor.

None of the comments to the rules specifically carve out an exception for such scientific evidence. In fact, the rule as written is very broad and the plain language almost certainly would encompass any evidence or statement of fact made to a tribunal. A lawyer, however, generally does not have a duty to volunteer information harmful to the client. Furthermore, an argument could be made that presenting different scientific theories are not misrepresentations of fact at all, but are rather varying interpretations of the facts.

Nevertheless, it seems clear that there is a line that an attorney can cross. Many blatantly unsubstantiated theories would almost certainly qualify as “false.” For example, arguing that the Earth is actually flat is so disproven and devoid of factual support as to make such an argument outrageous. More questionable are the many toxic tort claims based on “single exposure” theories that lack serious scientific support. Attorneys would do well to dwell on this. Although the current threat of sanction is low, a time may come when putting forth pseudoscientific evidence under the veil of zealously representing a client is no longer enough to convince a disciplinary board that the ethical duties were fulfilled. Further, introducing unscientific evidence simply to benefit one’s client and, by extension, one’s personal professional success is exactly the type of manipulation of the court system that the rule seeks to prevent. At the very least, it goes against the spirit of the rule.


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