Client perjury: should a lawyer defend the system or the client?

• Author: Pope, Daniel J.

It is a beautiful afternoon and for once you have the best of your long-time opponent, Billy Bob. Both the facts and law are on your side, the documents are clear and unambiguous, and even your client makes a better appearance. After rather exhaustive preparation and repeated warnings about Billy Bob's often belligerent manner, you are presenting your client for a deposition.

The deposition is going so smoothly, and you are so confident, that your mind begins to wander until alarm bells go off. You begin to listen very closely to questions and answers and realize that your client may be shading the truth a bit too much for your liking. You ask for and get a recess and talk with your client in the hallway.

You emphasize again the necessity for truthful responses no matter whether the client thinks they are favorable or not. You implore your client to ignore opposing counsel's sarcastic tone and mannerisms, all of which are intended to infuriate the witness. Having sturdied the boat, you return to the deposition.

But the client has not heeded your warning and is becoming upset by the increasingly condescending tone of Billy Bob, who is clearly getting under your client's skin. Your objections become more repeated and lengthy, and you even attempt to embarrass Billy Bob with a call to his "well-deserved" reputation for fair play.

Then it happens: your client tells an outright lie under oath. Not a little lie, and not a lie about some collateral matter, but a big lie that goes to the heart of your case. And this is no ordinary client, but your only and thus biggest client. What in the world do you do now?

All lawyers have encountered this situation, if not during their law practice, at least during a legal ethics course in law school: What should a lawyer do when a client swears to "tell the truth" and then fails to abide by that oath? In furtherance of social justice, what does society want lawyers to do?

We cannot have an honest system if the

powers vested in lawyers are corrupted, and

we cannot have a fair system unless lawyers,

too, are held accountable when they break

the law.(1)

The purpose behind our legal system is to discover the truth. To allow any false or misleading information leads us off this path. As lawyers, we must strive to maintain the integrity and sanctity of our legal system in order for fairness and truth to prevail.(2)

In the scheme of our legal system, we are called on to defend both our clients and the system. When faced with a perjurious client, we soon realize that doing what is "right" is a grappling task. This is because the law imposes many duties on lawyers, among which are the duties (1) to learn all the facts of the case, (2) to keep communications with the client in strictest confidence and (3) yet always be candid with the court.(3) In the perjurious client situation, these obligations can conflict with each other to the extent that we cannot uphold one duty without compromising the other. Clients who commit perjury leave lawyers in a quandary as to which duty is paramount.(4)

In any ethical conflict in the legal arena, lawyers should look to the Rules of Professional Conduct or the Code of Professional Responsibility in force in their jurisdiction for the right answer. But as rules go, they are often hard to abide by and subject to interpretation. Although numerous rules, commentaries and case law provide some guidance on the client perjury situation, they also evidence the puzzle within those rules.

While the ethical rules tell us what we must do when dealing with a perjurious client, how to abide by the rules without compromising a confidence is less clear. This article will provide some insight into what path one should follow when faced with a perjurious client.

OBEYING RULES WITHOUT BREACHING DUTY TO CLIENT

The American Bar Association Model Rules of Professional Conduct leave no doubt as to what you should do when faced with a perjurious client -- a lawyer cannot offer perjured testimony. Rule 3.3(a)(4) states: "A lawyer shall not knowingly: . . . offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures." (Emphasis supplied.) Rule 3.3(a)(2) states: "A lawyer shall not knowingly: . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client."

As clear cut as these rules may seem, they fail to (1) give us a course of action as to how to abide by them without compromising our oath of confidentiality and (2) address exactly when we have an ethical duty to act -- that is, when does a lawyer know a client has or will commit perjury.

Model Rules 3.3(a)(2) and 3.3(a)(4) arise from a lawyer's general obligation to be truthful to the court. Thus, when faced with a client who intends to or has committed a fraud on the court, the lawyer has the obligation to apprise the court of any fraudulent evidence presented. In some circumstances, a failure to disclose is tantamount to affirmative misrepresentation.(5) Additionally, a lawyer has an obligation to conduct a reasonable investigation of the facts to assess the client's truthfulness.(6) These obligations often conflict with a client's ultimate objectives. However, the rules clearly prohibit lawyers from knowingly introducing perjured testimony.(7)

CLIENT COMMITS PERJURY IN CIVIL CASE

How should you proceed when you discover that your client has committed perjury in a civil case? Generally, the ethical obligations with respect to perjury are the same in criminal and civil actions. However, in civil cases, you may have more options because of timing issues and constitutional considerations. In civil cases, lawyers typically encounter perjury issues in three instances: (1) when a client intends to commit perjury, (2) when a client commits perjury during discovery and (3) when a client commits perjury during trial.

1. Intent to commit perjury

   First, the situation when a lawyer knows that the client intends to commit perjury. Clearly, a court will not tolerate a lawyer's presenting false...