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When Your Client Wants to Lie
How to Protect Yourself, Your Client and the Judical System
by David D. Dodge
In the final scene of the movie The Devil’s Advocate, Kevin Lomax, having seen the error of his ways as an uncompromising, result-oriented defense lawyer, dramatically informs the court that he can no longer represent his client who, he has just come to realize, had lied to him concerning the facts of the case, and who (we assume) was going to lie again when on the witness stand. Lomax had to go through an excruciating experience with the Devil before coming to the conclusion that his duty to the court and his own sense of honor were more important than notching up another victory for a client he knew was lying. In Arizona, attorneys don’t have to go through the soul-searching agony Lomax experienced to arrive at his conclusion: all they have to do is read the Arizona Rules of Professional Conduct.1
This article examines the conflicting duties imposed upon lawyers confronted with a confidential communication from a client indicating either that 1) the client has lied during the course of events in the case and wants to continue the deception as the case proceeds through trial, or 2) the client has not yet lied but plans to lie at trial. This article is not about whether a lawyer should lie or present false testimony. That is not allowed under any circumstances.2 Nor does this article concern situations where a lawyer knows a non-client witness is going to lie. In those cases, the lawyer is prohibited from offering the witness’s testimony, regardless of the client’s wishes.3 Rather, this article will examine only those situations where the client is the one who intends to offer or conceal evidence the lawyer knows to be false. Four Ethical Rules (ERs) control resolution of the issue.
The Controlling ERs
The first relevant ER is ER 1.2 (Scope of Representation). ER 1.2(d)4 prohibits a lawyer from counseling a client to engage, or assisting a client, in conduct a lawyer knows is criminal or fraudulent. The second ER to be considered is ER 1.6 (Confidentiality of Information). ERs 1.6(a) and (b)5 prohibit a lawyer from revealing information relating to the representation of a client except to prevent the client from committing a criminal act likely to result in death or substantial bodily harm. ER 1.6(c) states that a lawyer may, but need not, reveal the intention of his client to commit any other sort of crime and the information necessary to prevent it.
The third ER involved is 1.16 (Declining or Terminating Representation). ER 1.16(a)(1)6 prohibits the continuing representation of a client when the representation will result in a violation of the Rules of Professional Conduct. Finally, we must consider ER 3.3 (Candor Toward the Tribunal). ERs 3.3(a), (b) and (c)7 prohibit a lawyer from making a false statement of material fact or law to a court and from failing to disclose a material fact necessary to avoid assisting the client in a criminal or fraudulent act. ER 3.3(c) also prohibits a lawyer from knowingly offering false evidence.
With one ER telling us that we are prohibited from revealing information told to us in confidence and others telling us that we have to disclose the same information if it is necessary to avoid assisting in a criminal or fraudulent act, there may be occasions when counsel will be presented with conflicting duties. How we deal with these conflicting duties may determine whether or not we end up taking a trip through the disciplinary process. Interestingly, a lawyer’s options in the disclosure vs. confidentiality conflict may depend on whether the conflict arises in a civil or a criminal context.
Advocating the Client’s Position Even if the Lawyer Knows That Perjury Will Be Committed
At least one commentator has argued that a lawyer should cooperate with the client in putting on the client’s case even when the lawyer knows perjury will be committed.8 In a frequently cited article, Professor Freedman argues, albeit in the criminal context, that the duties of client confidentiality and effective representation are more important and therefore eclipse the lawyer’s duty of candor with the court. No court has accepted Freedman’s views and they have been rejected in Arizona.9 Freedman has been almost uniformly criticized by other legal commentators.10 It’s a pretty good bet that a lawyer who decides to adopt this approach, especially in the civil context, should also plan on being introduced to the lawyer disciplinary system.
Persuading the Client Not to Commit Perjury
In contrast to the reception Freedman’s approach has enjoyed, everybody seems to agree that a lawyer should always first attempt to persuade the client not to commit perjury and to testify truthfully.11 This applies in both the criminal and civil contexts. Even the U.S. Supreme Court has weighed in on this one: in Nix v. Whiteside,12 the Court was confronted with a criminal case where the defendant was claiming that because his lawyer insisted that he not commit perjury, he was denied effective assistance of counsel. Overlooking the rather distressing state of affairs when lying is equated with having a good lawyer, the Court held that, at a minimum, a lawyer’s first duty when confronted with potential perjury is to attempt to dissuade the client from any unlawful course of conduct.13 Of course, this alternative is best if it succeeds. There is no perjury, and no violation of a client confidence is required. But what happens if the client persists in not telling the truth?
Withdrawal from Representation
ER 1.16 states that a lawyer shall not represent a client or, where representation has commenced, shall withdraw from representation of the client if the representation will result in a violation of the Rules of Professional Conduct. This approach certainly protects the lawyer’s interest in not being a part of the presentation of perjured testimony. But it really doesn’t solve the problem. Permitting the first lawyer to withdraw could trigger an endless cycle of defense continuances and motions to withdraw as each new lawyer realizes what the client intends.14 Worse yet, the defendant may decide it’s easier just to lie without having to tell another lawyer what the truth of the matter really is. Worst of all, the defendant may find a new lawyer who has just read Freedman’s article.
Disclosure to the Court
Another alternative is for the lawyer to disclose the perjury to the court. This approach is unsatisfactory in that it compromises the lawyer’s ethical duty to keep client communications confidential and results in a significant conflict of interest between the lawyer and the client.15 Additionally, until the client takes the stand, there is always the chance that he or she will have a change of heart and testify truthfully. This is actually what happened in Nix v. Whiteside. In a sense, if a lawyer moves to withdraw from representation stating that a reason for the motion cannot be given, the lawyer is effectively indicating to the court that the lawyer believes the client is about to commit perjury. Is the court then supposed to conduct a hearing on whether the client is going to lie? Does the client get to testify? Although there are obviously a number of problems with this approach, if a lawyer wants to avoid the disciplinary process, some form of disclosure must be considered if withdrawal from representation has been denied by the court. This is especially so in the civil context. Disclosure is what ER 3.3 requires, with the caveat that the duty to disclose in Arizona is modified "as required by applicable law."16 Neither ER 3.3 nor its Comment advise as to which "applicable law" is involved or what modifications to the duty of disclosure are contemplated. The Comment further handicaps the process by declaring that, at least in the criminal context, defense counsel’s ethical options "are still in the process of clarification." It’s obviously wise to consider other options.
The Narrative Approach
A further alternative is the "narrative approach." This consists of the lawyer calling the client to the stand and asking him to recite in narrative form his version of the events at issue. In closing argument, the lawyer does not advance the client’s version of the facts as worthy of belief and does not recite or otherwise rely upon the false testimony. The narrative approach was adopted in the 1970s by the American Bar Association in its Project on Standards for Criminal Justice.17 The narrative approach has been criticized as being both tantamount to the lawyer actively participating in the commission of a fraud on the court and the same thing as telegraphing to the court and the jury that the lawyer doesn’t believe the client’s testimony.18 The narrative approach is described in Arizona Ethical Opinion No. 92-2 (March 12, 1992) while discussing the ABA Defense Function Standards, but there is no clear indication whether it is considered proper under Arizona practice. However, the opinion does state that if the lawyer proceeds to present the client’s testimony, no reliance or argument can be made upon the client’s false statement. It should also be noted that the narrative approach has recently been approved in California and several other jurisdictions.19
Refusing to Permit the Client to Testify
This is the opposite extreme from the first approach, and is based on the belief that a lawyer not only has an ethical obligation to refrain from participating in the presentation of perjured testimony, but that the client has no right to commit perjury. Precluding the client from testifying has been roundly criticized because it essentially substitutes the lawyer as the judge of the client’s credibility. Furthermore, the determination is made before the client is on the witness stand, where people have been known to break with the original intentions to lie and tell the truth. Finally, in the criminal context, while this approach safeguards the lawyer’s ethical obligations not to participate in the presentation of perjury, it results in a complete denial of the defendant’s right to testify.
The Arizona Experience
Any discussion of Arizona authorities on this subject must necessarily start with Arizona Ethics Opinion No. 92-2 (March 12, 1992). The question posed there was whether ER 3.3 required a lawyer to disclose to the court that his client was using a false name in one of two pending criminal matters in which the lawyer represented him. Of course, the fact that the client was using a false name was disclosed to the lawyer in confidence. After discussing the various ERs and the considerations involved, the opinion first determined that because the false name involved a past and continuing non-threatening deception, which the lawyer learned in confidence, the lawyer was not obligated to reveal the matter under either ER 1.6(b) or (c). The opinion then concluded that ER 3.3 will be the dominant rule in cases where there is the threat of perjured testimony or other form of fraud upon the court. Accordingly, the opinion advises that if the client has already misrepresented his name to the court, the lawyer should take "reasonable remedial measures" to correct the fraud. What these measures should be are not stated. However, the opinion goes on to state that the analysis cannot end there because the situation arose in the criminal context where the defendant client has a constitutional right to assistance of counsel and to testify on his own behalf. After discussing several cases, all of which were decided prior to the adoption of ER 3.3, the opinion concludes that in the criminal context, the lawyer confronted with potential perjury from the client should first attempt to convince the client not to advance false testimony. If the client insists on doing so, the lawyer must move to withdraw, citing irreconcilable differences but not disclosing why. If the motion to withdraw is denied, the lawyer must proceed to present the client’s defense but cannot rely upon or argue the client’s false statement during the remainder of the representation.
With one exception, the reported Arizona decisions involving attorney discipline for violation of ER 3.3 have all involved the lawyer making false representations on behalf of relatively innocent or unknowing clients. These included such actions as forging a client’s name to a court document or making misrepresentations to the State Bar during the disciplinary process. The one reported case involving the counseling of client dishonesty20 did not describe what happened, only that the lawyer was disbarred for doing it.
There are four other reported decisions arising in the Arizona courts concerning perjured testimony which show how other lawyers attempted to deal with such perjury.
Cardwell
In Lowery v. Cardwell,21 the Ninth Circuit reviewed a case arising in Arizona in which the lawyer, after being surprised with what he considered to be perjured testimony from the defendant, asked for a recess, during which he sought to withdraw as counsel without giving the reasons therefor. The motion was denied. The lawyer asked no more questions of the defendant and, in closing argument, made no reference to the defendant’s testimony, arguing reasonable doubt and failure to prove the elements of first-degree murder. The Ninth Circuit held that counsel’s attempt to withdraw amounted to an unequivocal announcement that he thought his client was lying and ordered that a writ of habeas corpus issue. The court stated that it was not concerned with ethical issues, only the defendant’s rights to due process and a fair trial, and held that the lawyer could have avoided being part of his client’s perjury by asking for a narrative version of the facts from his client and by avoiding argument later based on any perjured testimony. The court made reference to the ABA Defense Function Standard 7.7 as authority for its holding, and concluded by stating that the lawyer’s fatal mistake was calling the problem to the attention of the trial court. Note that this case arose before the adoption of the disclosure requirements of ER 3.3.
Jefferson
Another attempt at withdrawal without an explanation by court-appointed counsel in State v. Jefferson22 resulted in the Court holding that the attempted withdrawal was prejudicial to the defendant because the lawyer involved stated to the trial court that he could not disclose the reason he wanted to withdraw. By doing this, the Court stated, the lawyer had unequivocally announced to the court his disbelief in the truthfulness of his client’s testimony. The defendant’s probation revocation was accordingly reversed and sent back for a rehearing.
Lee
The lawyer in State v. Lee23 tried to convince his defendant client not to call two friends to the stand in an aggravated robbery case because the lawyer believed the friends were going to present perjured testimony. The defendant was adamant and the lawyer gave in. The lawyer simply asked the defendant’s friends, "Will you tell the jury exactly what happened [the night of the robbery], please?" The friends provided a narrative account, were cross-examined and excused. The lawyer made a record in chambers that he believed the defendant’s friends had perjured themselves but that he had called them as witnesses because of his client’s insistence. The lawyer then waived closing argument. The defendant appealed his conviction, claiming ineffective assistance of counsel. The Court of Appeals found the lawyer’s decision to call the two friends improper but not grounds for appeal. The court did, however, grant relief on the ground that the lawyer’s decision to waive closing argument constituted ineffective assistance. The State appealed to the Arizona Supreme Court. After noting that a lawyer’s responsibility when faced with a client who insists on perjurious testimony was the "subject of a caustic debate" [citing Professor Freedman and his critics], the Court found that calling perjurious witnesses and waiving closing argument were below the standard expected of a "minimally competent" lawyer. Again, note that this case concerned events which occurred prior to the adoption of ER 3.3. The Court’s objection to waiving closing argument was that no argument was made at all. The Court found ample evidence to exonerate the defendant without reference to the friends’ testimony, and that the waiver appeared to be based more on the lawyer’s conscience than on calculated trial tactics. The Court remanded the case to the trial court for the taking of evidence as to whether the defendant was prejudiced by his lawyer’s actions. Before closing, however, the Court took the opportunity to provide guidelines for counsel presented with a witness who he thinks will lie.
The Lee Guidelines
The Court stated in Lee that where the lawyer determines that it would be unethical to call a witness bent upon presenting false testimony, the lawyer must refuse to do so. If the refusal to call the witness results in "significant antagonism" between the lawyer and the client, the lawyer should request to withdraw without informing the court of the specific basis for the request.24 The Court stated that having the same conflict repeated with new counsel was not an important consideration and that new counsel might be more successful in convincing the client to abandon the demand that the witness be called. Finally, if withdrawal is not allowed, the lawyer must "present the client’s case as well as he or she can." The Court then stated:
Counsel must not compromise the integrity of his or her client, the court, or the legal profession by exposing a client’s proclivities or by engaging in unethical conduct at a client’s request.
There is no mention of the duties of disclosure required under ER 3.3.
Long
Finally, the defendant in State v. Long25 claimed he was denied effective assistance of counsel when his lawyer refused to call the defendant’s wife as a witness in his arson prosecution because the lawyer believed the wife would commit perjury by saying she started the fire. Without the assistance of his lawyer, the defendant called his wife, who testified as the lawyer feared. The lawyer conducted the rest of the defense, although he would not argue the wife’s alleged guilt in his closing. The defendant’s conviction was reversed based on the prosecutor’s statement to the jury that the lawyer’s failure to argue that the wife did it was obviously because the lawyer thought the wife was lying. The court was offended by the prosecutor’s attempt to make the lawyer’s ethical behavior into affirmative evidence of guilt and determined that there had been prejudicial error.
It may not be wise to draw too many conclusions from the reported cases in Arizona, since all of them were decided before the adoption of the Model Rules of Professional Conduct. This is especially true of the holdings in Jefferson and Cardwell concerning the lawyers’ attempts at withdrawal and the records they made before the trial court. It’s fairly safe to say that Lee is still good law concerning the calling of witnesses who the lawyer believes will lie. As for what to do with a lying client in the criminal context after the lawyer has attempted to change the client’s mind, we still have no solid precedent to guide us.26
A Modest Proposal
From all we’ve seen, it appears that the authors of the Comment to ER 3.3 were correct when they said that the law concerning client dishonesty, especially in the criminal context, is still in the process of clarification. However, having well-meaning lawyers exposed to disciplinary complaints while the law in this area develops is not a satisfactory situation. Perhaps the following could serve as "safe harbors" until the Arizona Supreme Court or the State Bar give us better guidance:
1. In civil matters, the lawyer confronted with potential client dishonesty must first try to counsel the client to tell the truth. If that fails, the lawyer must avoid offering the false evidence and withdraw as counsel. With early disclosure of proposed trial exhibits and trial testimony required under Rule 26.1, Arizona Rules of Civil Procedure, there is little risk that withdrawal will cause undue delay and expense. If the client resists withdrawal and that resistance threatens to prevent withdrawal, the lawyer should disclose the perjured evidence. In cases of non-testimonial client dishonesty, disclosure must be made to the court.27
2. In criminal matters, the lawyer confronted with potential client dishonesty must first try to counsel the client to tell the truth. If that fails, and the case has not yet been set for trial, the lawyer must avoid offering the false evidence and withdraw as counsel. If the case has been set for trial, the lawyer should advise the client that the client’s testimony will be adduced only through the narrative approach and that the lawyer will not make reference to any false evidence in argument. This should be done in writing and acknowledged by the client. The client can then make the decision whether he or she wants a new lawyer.
Under these alternatives, the lawyer’s conflicting duties under the ERs are honored and, in the criminal context, the client’s constitutional rights are protected. Although the best solution to the problem of the perjurious criminal defendant may have to await another day, a "safe harbor" approach will allow the ethically conscious lawyer to avoid the disciplinary process while maintaining the integrity of the profession. We all have enough challenges in the practice without having a Hobson’s Choice whenever we are confronted with a lying client.
Just ask Kevin Lomax.
David D. Dodge is a principal in the Phoenix firm of Lieberman, Dodge, Sendrow & Gerding, Ltd. Mr. Dodge wishes to thank Karen L. Kothe, a certified criminal law specialist with Lieberman, Dodge, Sendrow & Gerding, Ltd., and Lynda C. Shely, Special Services Counsel at the State Bar of Arizona, for their assistance in writing this article.
ENDNOTES:
1. Rule 42, Rules of the Arizona Supreme Court
2. ER 3.3
3. ER 3.3, see also State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984)
4. ER 1.2(d) states:
A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
5. ER 1.6(a), (b) and (c) state:
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
6. ER 1.16(a)(1) states: The representation will result in violation of the Rules of Professional Conduct or other law.
7. ER 3.3(a), (b) and (c) state:
(a) A lawyer shall not knowingly;
(1) make a false statement of material fact or law to a tribunal;
(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) 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
(4) except as required by applicable law, 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.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
8. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966); see also Silver, Truth, Justice and the American Way: The Case Against the Client Perjury Rules, 47 Vand. L. Rev. 339 (1994).
9. State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991) (defendant does not have a right to lie at trial or a right to solicit his lawyer’s aid in executing such a strategy).
10. Collett, Understanding Freedman’s Ethics, 33 Ariz. L. Rev. 455 (1991); see also Lefstein, Client Perjury in Criminal Cases: Still in Search of an Answer, 1 Geo. J. Legal Ethics 521 (1988); Liskov, Criminal Perjury: A Lawyer’s Choice Between Ethics, the Constitution and the Truth, 28 New Eng. L. Rev. 881 (1994).
11. See e.g., Rutherglen, Dilemmas and Disclosures: A Comment on Client Perjury, 19 Am.J.Crim.L. 267 (1992).
12. 475 U.S. 157 (1986).
13. 475 U.S. at 169.
14. People v. Gadson 19 Cal. App. 4th 1700, 24 Cal. Rptr.2d 219 (1993) at 19 Cal. App. 4th 1710.
15. See Silver, supra, at 415-418.
16. ER 3.3(a)(2) and (4).
17. Defense Function Standard 7.7 states:
Testimony by the defendant.
(a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer’s independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must advise his client against taking the witness stand to testify falsely.
(b) If, before trial, the defendant insists that he will take the stand to testify falsely, the lawyer must withdraw from the case, if that is feasible, seeking leave of the court if necessary.
(c) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises during the trial and the defendant insists upon testifying falsely in his own behalf, the lawyer may not lend his aid to the perjury. Before the defendant takes the stand in these circumstances, the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing the fact to the court. The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant’s known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument.
This standard was rejected when Rule 3.3 of the Model Rules of Professional Conduct was adopted which requires disclosure to the court.
18. Stephenson v. State, 206 Ga. App. 273, 424 S.E.2d 816, 818 (1993).
19. People v. Johnson, 72 Cal.Rptr.2d 805, 62 Cal. App. 4th 808 (1998). This court’s excellent opinion is what inspired this article.
20. In re Young, 164 Ariz. 502, 794 P.2d 135 (1990).
21. 575 F.2d 727 (9th Cir. 1978).
22. 126 Ariz. 341, 615 P.2d 638 (1980).
23. 142 Ariz. 210, 689 P.2d 153 (1984).
24. Justice Feldman notes in his dissent that this solution is not very realistic since no judge is going to allow a criminal defense lawyer to withdraw in mid-trial.
25. 148 Ariz. 295, 714 P.2d 465 (1986).
26. For an excellent description on how other courts have dealt with a variety of client perjury situations, see Annotated Model Rules of Professional Conduct (3rd Ed. 1996, American Bar Association) particularly at pp. 308-323.
27. Arizona Ethics Opinion 80-23 (October 8, 1980) (attorney must disclose to court that client surreptitiously copied file of opposing counsel).
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