Cal. Litig. 2020, Volume 33, Number 1

MCLE ARTICLE A Trial Lawyer’s Guide to Rule 3.3

By Robert L. Kehr

Robert L. Kehr of Kehr, Schiff, Crane & Cohen, LLP in Los Angeles, teaches lectures and writes on legal ethics and professional responsibility. He has served on numerous State and local committees on professional conduct rules.

Perhaps the one piece of information common to all trial lawyers is that they are officers of the court obligated to be honest with the courts. This common law duty was codified in California’s original 1872 Civil Code, and now is located at Business and Professions Code section 6068: "It is the duty of an attorney to do all of the following: … (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law."

This statutory language is evocative and emphatic but not specific. Some of the resulting uncertainties have been addressed by complementary Rules of Professional Conduct. For many years this was accomplished through rule 5-200, which added three details to the statutory language. These were prohibitions on intentionally misquoting any book, statute or decision, intentionally citing as authority any decision that has been overruled or statute that has been repealed or declared unconstitutional, or asserting personal knowledge except when testifying as a witness. These particulars might have been inherent in the general statutory principle, and they might have been apparent to many lawyers. However, including them in rule 5-200 supplied a helpful reminder to lawyers and avoided the need to extract these specifics from the all-purpose statutory prohibition.

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