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Case 1:09-cr-00581-WHP Document 522 Filed 04/06/12 Page 4 of 29
A-5846

shall promptly reveal the fraud to the tribunal.” Id. at 61 (emphasis added)(quoting DR 7-102(B)(2) of the Code of Professional Responsibility). The district judge concluded that Doe had “information clearly establishing” deposition perjury because he had “clear and convincing evidence of [the] witness's perjury.” Id. Doe himself testified that “he believed that [the] witness had lied at the deposition.” Id. at 59.

11. Without rejecting the lower court’s factual finding that Doe had clear and convincing evidence of fraud on the tribunal, the Doe Court held that “clearly establishing” required more. It held that “knowledge is required before the disclosure duty arises.” Id. at 62. Clear and convincing proof, which is an objective test, did not trigger a reporting duty. That a lawyer “strongly suspected” fraud on the tribunal (a subjective test) was also insufficient. Id. at 63. As the Court noted:

Our experience indicates that if any standard less than actual knowledge was adopted in this context [i.e., DR 7-102(B)(2)], serious consequences might follow. If attorneys were bound as part of their ethical duties to report to the court each time they strongly suspected that a witness lied, courts would be inundated with such reports. Court dockets would quickly become overburdened with conducting these collateral proceedings which would necessarily hold up the ultimate disposition of the underlying action. We do not believe that the Code's drafters intended to throw the court system into such a morass. Instead, it seems that the only reasonable conclusion is that the drafters intended disclosure of only that information which the attorney reasonably knows to be a fact and which, when combined with other facts in his knowledge, would clearly establish the existence of a fraud on the tribunal.

To interpret the rule to mean otherwise would be to require attorneys to disclose mere suspicions of fraud which are based upon incomplete information or information which may fall short of clearly establishing the existence of a fraud. We do not suggest, however, that by requiring that the attorney have actual knowledge of a fraud before he is bound to disclose it, he must wait until he has proof beyond a moral certainty that fraud has been committed. Rather, we simply conclude that he must clearly know, rather than suspect, that a fraud on the court has been committed before he brings this knowledge to the court's attention.

Id. Discipline was reversed.²

12. In an adversary legal system like ours, mandatory disclosure rules, which operate as a check on the premises of that system, receive scrutiny and debate from the courts and the bar over their proper scope. Furthermore, American jurisdictions do not all agree on how to reconcile competing interests – those of the client, the tribunal, and the adversary. New York, like most (but not all) jurisdictions, has adopted Rules 3.3 (a) and (b) in identical or substantially

² I was the expert for Doe in the Connecticut disciplinary hearing.

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