IV. Prevention of False Testimony and Reasonable Remedial Measures

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Prevention of False Testimony and Reasonable Remedial Measures

Most clients and witnesses testify truthfully. They strive for accuracy in their testimony because they are conscientious and appreciate their oaths. Good lawyers prevent false testimony through prudent investigations that arm them with necessary facts and frame an accurate picture of what actually transpired. When interviewing clients and witnesses, they reassuringly explain the importance of receiving complete and accurate accounts of events, and they ask open-ended questions to elicit full and frank answers. Capable lawyers also prevent false testimony through normal witness preparation, as where, for example, they refresh witnesses' recollection with documents, statements, and deposition transcripts; conduct mock direct and cross-examinations; and rehearse testimony using expected exhibits. Occasionally, however, lawyers may reasonably believe that clients or their witnesses intend to testify falsely. In rare cases, clients and witnesses surprise lawyers with false testimony.

It is initially important to distinguish between false testimony that is false because it is mistaken and false testimony that is dishonest. Lawyers must take remedial measures in either instance, but false testimony that is simply mistaken is relatively easy to correct. Even in the more difficult situation where the client's or witness's mistaken testimony is a surprise, the lawyer may remedy the problem by eliciting correct testimony through further examination, or refreshing the client's or witness's recollection with a document or prior testimony. If the false testimony occurs in a deposition, the problem can be remedied through further examination or by making changes on an errata sheet, or the lawyer can reopen the deposition. If the mistaken testimony occurs at trial and for whatever reason the witness cannot be immediately refocused, the lawyer may be able to recall the witness or call other witnesses to remove any false impression that the testimony made on the court or jury.

Real trouble lurks where clients or witnesses lie. This is the form of false testimony that gives lawyers fits. What do you do in that situation?

A. Prospective False Testimony

If you either reasonably believe or know that a client intends to testify falsely, you should first caution the client against doing so. The form and content of your remon-stration is a matter of judgment; you must attempt to persuade while maintaining the client's trust.²⁴⁴ In most cases you will be able to dissuade a client from testifying falsely simply by explaining the detrimental effect that the false testimony will have on the matter if it is exposed. Indeed, the revelation of the false testimony will have an effect far more severe than had the client told the truth in the first place. If the client insists on testifying falsely, you must inform the client of your duty not to offer false evidence and to take reasonable remedial action if it is offered, including disclosing the intended false testimony to the court.²⁴⁵ This admonition should be sufficient to abort the client's misguided plan. Ultimately, this is a situation in which pragmatism generally prevails. Assuming that it does, you have no duty to inform the court of the controversy.²⁴⁶

The approach is essentially the same where a witness other than a client is concerned. Although Model Rule 4.3 broadly prohibits lawyers from giving legal advice to unrepresented persons,²⁴⁷ that ban is irrelevant in this context because urging a witness to testify truthfully does not constitute legal advice. Advising a witness about the law and your duties as a lawyer is not the same as giving the witness legal advice.

If the issue surfaces in civil litigation and you cannot dissuade the client or witness from testifying falsely, you have at least two options short of revealing the prospective false testimony to the court. First, you may refuse to present the false testimony. This is true even if you do not know that the client or witness will testify falsely, but only reasonably believe that they will do so.²⁴⁸ Second, you may move to withdraw from the client's representation. Withdrawal is far more likely to be a consideration where it is a client who intends to testify falsely rather than a witness. The challenge in withdrawal is doing so in a fashion that will do the least harm to the client's case. Even assuming that the client will experience adverse effects as a result of your withdrawal, however, it is difficult for the client to complain. In In re Sealed Case,²⁴⁹ for example, the court permitted a law firm to withdraw from a case in which it justifiably believed that its client intended to commit perjury.²⁵⁰ The magistrate assigned to the case had noted that the firm's withdrawal would leave the client unrepresented, while the district judge erroneously conditioned the firm's withdrawal on its willingness to forego unpaid fees owed by the client. As the In re Sealed Case court explained, however, "[s]ystemic interests are best served by remitting such litigants to their own devices rather than by forcing lawyers to put both their reputations and their treasury at the disposal of reprobates."²⁵¹

If prospective false testimony surfaces in a criminal case, you should try to dissuade the client or witness from testifying falsely as explained before. If you are unsuccessful, the solution is simple regarding witnesses: do not call them. If the client is the problem, your options vary dramatically depending on whether you reasonably believe that the client will testify falsely, or whether you know that he will do so. If you reasonably believe that the client will testify falsely, you must call him if he insists on testifying. If he testifies truthfully, there is no problem. If he testifies falsely and you know that he did so, you are then put in the position of having to take reasonable remedial measures on the back end. If, on the other hand, you know that the client intends to testify falsely, you find yourself on the terrain mapped in Part III. There your options will depend on the jurisdiction. Keep in mind, however, that even jurisdictions that permit knowingly false testimony in the form of a narrative do so only as a last resort—typically after the lawyer has moved to withdraw or has otherwise provided the court with enough information to suspect perjury. You must always do that which you reasonably can to avoid offering false testimony, even in a passive role. You should not offer narrative testimony without revealing to the court your intention to do so and obtaining the court's approval of that approach. That is doubly good advice in any jurisdiction in which there is no case law or reasoned ethics opinion permitting the narrative approach.

B. False Testimony in Retrospect

Clients and witnesses may surprise lawyers with false testimony, as where they testify in a deposition, at a hearing, or at trial in a manner that the lawyer did not expect. Alternatively, a lawyer...