It’s Legal Ethical Conundrum # 1. At some point in their practice, every lawyer has faced this dilemma and had to figure out how to confront it and resolve it for themselves. It’s also why a lot of folks hate lawyers, because they believe that most lawyers have no qualms about putting a client up there on the stand to blatantly lie; in fact most lawyers struggling with the issue are doing so because they are torn between various important obligations that are in conflict when presented with this scenario.
There have been numerous articles and even Continuing Legal Education symposiums dealing with how to address it when it is your turn. So I was not surprised when a former law student who is now in private practice and only out of law school less than two years called me for advice when she was told by a client that he wanted to take the stand and “Just say whatever he had to say to get off.” She wanted to know what her obligation was since he told her exactly what he was gong to say and she knew it was false. After spending about an hour on the phone with her, I decided to write a quick summary of the issue as it applies in New York. I also focus on the issue from the point of a criminal defense perspective because that is when there are Constitutional implications in play.
Normally no rule can be crafted that applies to every case, but the first rule that is in fact universal is this: You have an obligation to try and dissuade your client from taking this course of action. So that is Step #1. If you complete Step # 1 properly, proceed no further and go on with the trial. In executing Step # 1 remind the client that because the burden of proof is solely on the prosecution to show guilt beyond a reasonable doubt, the job of the defense attorney is to challenge and test the prosecution’s theory of guilt even when the accused is in fact guilty of the crime. (Also why people hate lawyers, they try to get the guilty off). The defendant not only has to be found guilty, he has to be found guilty for the right reasons, for the correct crime as charged, using legally acquired evidence admitted within the rules of evidence, with all the defendant’s rights as a citizen respected and protected, in a fair trial. Why mess that up with perjured testimony? Explain that the minute the defendant takes the stand, all of the above Constitutional safeguards go out the window and the entire focus of the jury will be on whether the defendant told the truth. No matter what the judge says in his charge, a testifying defendant shifts the burden of proof.
Here then is the first Constitutional conflict: A defendant enjoys five areas that are totally within his purview and over which an attorney cannot impose his will:(1) Whether to plead guilty; (2) Whether to testify before a Grand Jury; (3) Whether to testify at trial (4) whether to waive a jury and (5) whether to take an appeal. All other decisions (which witnesses to call, which documents to allow in or fight over, etc) are trial strategy left to counsel; but on the Big Five you must follow your client’s instructions even if it means joining a pack of lemmings dashing off the cliff and into the raging sea. Been there done that, it’s no fun.
So if the know-it-all client still insists on his course of conduct, what is Step #2? Know the law as mandated by New York’s Ethical rules and case law governing attorney conduct.
Neither the Federal or State constitutions guarantee a defendant the right to commit perjury. United States v. Dunnigan, 507 U.S. 87, 96 (1993). Nor is there any constitutional right to the assistance of counsel to do so. Id The United States Supreme Court is very clear on this point:
The right to counsel includes no right to have a lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment.
Nix v. Whiteside, 475 U.S. 157 (1986).
New York’s disciplinary rules reinforce this caution. DR 7-102(A) (4)(lawyer shall not knowingly use perjured testimony or false evidence); DR 7-102(A)(5) (lawyer shall not make a false statement of fact); DR 7-102(A) (6) (lawyer shall not participate in creation or preservation of evidence lawyer knows or it is obvious that the evidence is false); DR 7-102(A)(7) (lawyer shall not counsel or assist client in conduct lawyer knows to be illegal or fraudulent); DR 7-102(A)(8) (lawyer shall not knowingly engage in illegal conduct). The relevant ethical consideration, which is aspirational in nature, is to the same effect:
The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence the client desires to have presented unless the lawyer knows, or from facts within the lawyer’s knowledge should know, that such testimony or evidence is false, fraudulent, or perjured.
Now that you are past Step # 2 what is Step #3? This where thoughts and strategies diverge. So all the rest of the article will talk about various Steps # 3. So let’s call the first road Step 3a: Tell the court and move to be relieved. Courts have upheld a lawyer’s decision to break the attorney –client privilege and advise the court of the client’s intention. ); People v. Appel, 120 A.D.2d 319 (3d Dept. 1986) (defense counsel’s disclosure to court of defendant’s intent to commit perjury approved as one way of proceeding under the circumstances); People v. Salguerro, 103 Misc.2d 155 (Sup. Ct. N.Y. Co. 1980), judg. aff’d, 92 A.D.2d 1091 (1st Dept. 1983) (“counsel’s decision to inform the court of the defendant’s plan [to commit perjury] was highly laudable and in conformity with standards announced by bar associations, courts of sister States, and commentators”); United States v. Teitler, 802 F.2d 606, 617-618 (2d Cir. 1986) (lawyer has a duty to prevent and disclose frauds on the court and may disclose confidential communications to do so). Even making a motion to be relieved and saying that the reason cannot be disclosed because doing so would violate a privilege sends the exact same message to the court. Of course, this gets you off the hook but now the client must learn his lesson and not tell Lawyer #2 about his intention to commit perjury or else that lawyer will be in the same boat.
Step # 3b: Put him on in a narrative fashion. This is the method favored by NY courts. You still have to tell the court that you intend to call your client and put him on in a narrative fashion because you cannot take him through his examination because doing so would be assisting him in a manner you are not allowed to assist him in –get it Your Honor and DA, wink wink? This is unpleasant for several reasons. The jury will think you are an idiot for just putting your client up there and saying “What do you want to tell this jury?” and then sitting down. Savvy jurors will know what is going on and tell other jurors that the lawyer believes the defendant is lying. The court and DA know the defendant is committing perjury so sentencing will be harsh. But despite all of the above, this is a method that will allow you to stay on the trial and still try to win. NOTE: You cannot discuss the defendant’s testimony in your summation, or else you will be knowingly using perjured testimony.
Step #3c: Strap on the blinders and delude yourself that you don’t actually know he is committing perjury. This is for those who want to live under the protection of the meaning of the word “know.” For eg., What do we really know anyway? I wasn’t there. I did not witness the crime. After all, the attorney only has a problem if he or she “knows” the defendant is guilty, so many lawyers employ an extreme and stretched version of the word “know” that would be alien to any other profession and common sense. These lawyers argue that they never can “know” that a client is guilty, even if he confesses. False confessions are common, they argue. Who knows if the client is confused, or only partially telling the truth? The definitions in the American Bar Association Rules of Professional Conduct say that “know” means actual knowledge. Well, we only have “actual knowledge” about what we have personally witnessed, right?
No. The ethical rules also encompass that which a lawyer should reasonably know or that which can be reasonably inferred as being false. Young lawyers should not start their careers by building up this false wall of lack of knowledge. Let’s not kid ourselves about we “know” or “don’t know.” In my opinion you are more true to yourself if you just decide to ditch it all and suborn the perjury (not recommended) than you are in trying to convince yourself you don’t actually know the client is lying when you actually do know. In the former you are unethical but honest to yourself, in the other you are unethical and dishonest to yourself.
Tied into this willing suspension of disbelief is the corollary known as “Don’t Ask – Don’t Tell” – in other words never learn what your client intends to say. One of my all-time favorite shows and my #1 favorite law show is Rumpole of the Bailey an old PBS series about a criminal defense barrister practicing in London. One of his famous mottos is “Never ask the customer if he did it, he might tell you.” But the reason why this may be sound advice Across The Pond but not at home is because in England, if the client tells you he is guilty, you cannot proceed to trial. You must plead him out or not take the case. As explained above, that is not the case in the USA.
The other problem with this tactic is that clients are supposed to tell their attorneys everything relevant to their representation. It defies logic to pretend that a criminal client benefits from not telling his attorney the most relevant information of all — whether he actually committed the crime he is accused of—unless the attorney is intentionally making it possible for him to lie in trial. If that is why the attorney doesn’t want to “know,” then the attorney is “assisting” his client in committing the crime of perjury anyway. The other blatant fact is that a lawyer usually knows from the evidence whether the client is guilty even if he does not have to straight out ask him. Unless the client consistently proclaims his innocence, has a plausible story to tell on the stand, and his lawyer has his own reasonable doubts about his guilt as a result, most of the time you can figure out that he is factually guilty. If not, then, you really won’t “know” that the defendant is lying, and there is no problem.
Step #3d: Proclaim yourself a disciple of Monroe Freedman. Freedman, is a graduate of Harvard College, Harvard Law and lectured at Harvard for 30 years; one-time dean of Hofstra Law school; among his many articles on lawyers’ ethics is “The Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions.” He is one of the best known legal ethics experts in the country. Freedman takes the position that of the options available in this scenario, the most ethical of the bad options is in fact the one that appears the least ethical: go ahead and treat the perjurious client as you would a truthful one, and examine him on the stand like any other. His belief is that since some ethical line is going to be crossed, it should not be the one that requires zealous representation and protecting confidences, or the right of a defendant to testify. He opines that it is better to give up the duty of honesty to the court. Of course you can also rationalize this conduct by arguing to yourself that police officers occasionally lie on the stand and that on occasion an ADA turns a blind eye to obvious perjury as well. My problem with this approach is not just that it is unethical; it’s that with a lawyer’s guidance and support perjury becomes more accessible and effective and in the end that is too harmful to the system. Until the ethical rules say otherwise, I cannot support the Freedman model.
Step #4: Whichever step you choose, have a good strong drink afterwards.
So in the end, I left my ex-law student not with a definitive answer (although when pressed I told her I chose 3b on those very rare occasions when it arose over my 26+ year career as a trial lawyer) but with a menu of options for her to decide upon based on her ability to delude herself; live with herself; and adhere to the ethical guidelines of our profession. Either way you must be willing to live with the consequences of your decision. I told her to basically just remember this simple phrase:
Truth or consequences.