By Judge Audrey Headrick, Chattannooga

Is withholding information from a judge ever appropriate, or is it misleading? Merriam-Webster defines “candor” as “unreserved, honest, or sincere expression: forthrightness.”

For lawyers, Rule 3.3 of the Tennessee Rules of Professional Conduct requires candor toward the court. Subsections (a)-(d) are the most relevant to the Court of Workers’ Compensation Claims:

a) A lawyer shall not knowingly:

1) make a false statement of fact or law to a tribunal[.]

2) 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[.] …

b) A lawyer shall not offer evidence the lawyer knows to be false[.] . ..

c) A lawyer shall not affirm the validity of, or otherwise use, any evidence the lawyer knows to be false.

d) A lawyer may refuse to offer or use evidence . . . that the lawyer reasonably believes is false, misleading, fraudulent or illegally obtained.    

Comment (1) to Rule 3.3 explains that the rule applies not only to a lawyer’s appearances before the court but also to activities that fall under the court’s authority, such as pretrial discovery or court-ordered mediation.

Comment (3) is particularly insightful about a lawyer’s representations. It explains that statements made in a lawyer’s affidavit or in open court that claim to be based on the lawyer’s own knowledge should “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.” Further, a failure to disclose knowledge may represent an affirmative misrepresentation.

Regarding representations to the court, this often becomes necessary in motion practice. Consider attaching your own Rule 72 declaration or affidavit when appropriate to support factual assertions you make in a motion. Semich v. AT&T Servs., Inc. The Appeals Board in Semich reminded that statements you make alone without supporting documentation aren’t evidence; they’re simply argument. Along these lines, at a motion hearing, the judge may swear-in a self-represented litigant as a witness. Jones v. Transforce, Inc. Further, in Semich, the Board wrote that if you make any mistakes in representations made to the court, you must promptly correct the mistakes and file any supporting evidence explaining the mistakes.

An honest mistake is very different from a false representation. Comment (4) to Rule 3.3 addresses a lawyer making a misleading legal argument. Simply put, a lawyer acts dishonestly toward the court if a legal argument is based on knowingly false representations of law. The comment explains that zealously representing your client doesn’t require you to forsake candor to the court; instead, it’s a balancing act. Further, the Tennessee Supreme Court has held that the legal “system can provide no harbor for clever devices to divert the search, mislead opposing counsel or the court, or cover up that which is necessary for justice in the end.” Harris v. Bd. of Prof’l Responsibility of the Supreme Ct. of Tenn.      

Aside from unsupported or false representations, the best way a lawyer can avoid a lack of candor is to simply be prepared.

For example, lawyers should appear for settlement approvals having knowledge about the case and settlement terms. If you receive the file last-minute, it’s up to you to educate yourself. Be able to answer simple, routine questions about the claim. In other words, don’t respond with, “[t]his isn’t my file, so I don’t know,” or “I don’t know why the case settled this way because the adjuster negotiated it.”

In conclusion, the importance of candor toward the court cannot be overstated. Our entire justice system depends on courts, and officers of the court—you—to adhere to this high standard.

The truth matters. So does your reputation for honesty. Candor adds value to your word with a court for the rest of your career. It’s your duty, and it’s also the right thing to do.

Photo by the author.