False statements of fact and law, the duty to correct, the scope of "tribunal," and the limit on confidentiality where candor is at stake.
(a) A lawyer shall not knowingly:
(1) make 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;
(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; or
(3) offer 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 in an adjudicative proceeding 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.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Kan. Sup. Ct. R. 226, KRPC 3.3.
Missouri Rule 4-3.3 is substantively identical to KRPC 3.3 and tracks ABA Model Rule 3.3. Both rules organize the candor duty into four subdivisions: prohibited conduct in subdivision (a), remedial obligation in adjudicative proceedings in subdivision (b), duration and override of confidentiality in subdivision (c), and the heightened ex parte duty in subdivision (d).
A lawyer shall not knowingly make a false statement of fact or law to a tribunal. The prohibition reaches both affirmative misstatements and failure to correct a prior misstatement of material fact or law made by the lawyer. The "knowingly" standard means actual knowledge, which may be inferred from circumstances. Constructive knowledge - what a reasonable lawyer should have known - is not by itself sufficient under the rule, though it may be relevant under Rule 8.4(c) or under Rule 9011 in federal practice.
The category includes affirmative factual assertions in pleadings, motions, briefs, oral argument, evidentiary submissions, and other communications with the tribunal. The standard is objective falsity, not subjective belief. A statement that is literally true but materially misleading in context may be a false statement under the rule.
The category includes legal contentions known to be unsupported. The classic example is an assertion that controlling authority stands for a proposition it does not stand for. The standard is knowledge; a good-faith argument for extension or modification of existing law is not a false statement of law, but mischaracterization of existing authority is.
A lawyer shall not 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. The duty is conditioned on three factors: (a) the authority must be in the controlling jurisdiction, (b) it must be directly adverse to the client's position, and (c) opposing counsel has not disclosed it. The rule does not require disclosure of merely unfavorable authority or of authority that distinguishes the client's case; the threshold is "directly adverse."
The lawyer shall not offer evidence the lawyer knows to be false. If material evidence has been offered and the lawyer comes to know of its falsity, the lawyer must take reasonable remedial measures, including if necessary disclosure to the tribunal. The duty applies regardless of who offered the evidence - the lawyer, the lawyer's client, or a witness called by the lawyer. The rule preserves a lawyer's discretion to refuse to offer evidence (other than a criminal defendant's testimony) the lawyer reasonably believes - rather than knows - to be false.
The duty to correct - embedded in 3.3(a)(1) and articulated again in 3.3(a)(3) and 3.3(b) - is the operative continuing duty under the rule. A prior statement, evidence, or position discovered after submission to be false generates a remedial obligation. The lawyer's first option is typically to persuade the client (or witness) to withdraw or correct the offending material. If that is unsuccessful, "reasonable remedial measures" may include withdrawal of the affected pleading, motion, or evidence and, where necessary, disclosure to the tribunal.
The remedial duty overrides Rule 1.6. Subdivision (c) provides that the duties in subdivisions (a) and (b) apply even if compliance requires disclosure of information otherwise protected by Rule 1.6 (confidentiality of information). The candor duty is one of the limited circumstances in which a lawyer must disclose information that confidentiality would otherwise protect.
The duties under subdivisions (a) and (b) continue to the conclusion of the proceeding. The Comment to Model Rule 3.3 defines conclusion of the proceeding as a final judgment in the matter, including the expiration or final disposition of any appeal. The duty does not extinguish at the conclusion of a particular hearing or the entry of a particular order.
In an ex parte proceeding, the lawyer's duty expands beyond the prohibitions of subdivisions (a) and (b). The lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, "whether or not the facts are adverse." The ordinary adversarial process - in which opposing counsel surfaces adverse facts - is absent in an ex parte proceeding, and the rule fills that gap by making the lawyer responsible for the completeness of the factual record.
"Tribunal" is defined in Rule 1.0 to mean a court, an arbitrator in a binding arbitration proceeding, or a legislative body, administrative agency, or other body acting in an adjudicative capacity. In the bankruptcy context, the bankruptcy court is plainly a tribunal. The United States Trustee, when reviewing fee applications or conducting investigations, is generally treated as a tribunal where the relevant activity is adjudicative; the analysis is fact-specific. Statements made in court filings - whether the matter is contested or unopposed - are statements to the tribunal.
A motion is filed reciting a particular date for a transaction. The lawyer later discovers the date was incorrect. Rule 3.3(a)(1) requires the lawyer to correct the prior statement; this is typically accomplished by an amended filing or a notice to the court. The duty is not satisfied by simply leaving the incorrect filing on the record.
A brief in the District of Kansas relies on out-of-circuit authority while not citing controlling Tenth Circuit authority directly adverse to the client's position. If opposing counsel has not disclosed the adverse authority, Rule 3.3(a)(2) requires the lawyer to disclose it.
In federal bankruptcy practice, Rule 3.3 operates in parallel with Federal Rule of Bankruptcy Procedure 9011. A filing that lacks evidentiary support violates Rule 9011(b)(3); a filing containing a knowingly false statement of fact violates both Rule 9011(b)(3) and KRPC 3.3(a)(1). The two regimes are independent and a violation of one may be redressable under the other. Federal Rule 9011 sanctions can be sought through the safe-harbor motion procedure; KRPC 3.3 violations are addressed by the state disciplinary authority on referral.
This page provides general information about Rules of Professional Conduct 3.3 (Kansas) and 4-3.3 (Missouri). It does not constitute legal advice. Specific questions about candor obligations in pending matters should be evaluated by qualified counsel.