19.04. Duty When Client or Witness Intends to Commit/has Committed Perjury [Rule 3.3(a) (3) & (c)]

The lawyer’s obligation when faced with client perjury has changed over time.  Under the ABA Model Code (the prior version of the ethics rules), the lawyer was prohibited from offering perjured testimony, but if the client testified falsely without informing the lawyer, the lawyer had no obligation to take any steps to remedy the situation.   This approach protected the client but it did not dissuade perjured testimony. 

The Model Rules (the current ethics rules) rejects this approach and adopts an approach that requires the lawyer to take steps to remedy false testimony even if the lawyer was not informed of the client’s intent to perjurer himself before testifying.  The primary rules that govern a lawyer’s obligations are in Rule 3.3(a)(3).

Here is how to analyze a perjury issue under the Model Rules:

• A lawyer cannot offer evidence that the lawyer “knows to be false.”  This is an absolute bar – it doesn’t matter if the client is a criminal defendant, a civil party, or a witness.  A lawyer cannot ethically call a witness the lawyer knows will testify falsely.[1]
• If a client or witness offers testimony that the lawyer later learns is false, the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”[2]  The remedial measures the lawyer should take:  (1) talk to the client confidentially and try to get the client to retract the false statement.  During the conversation the lawyer should make it clear to the person that the lawyer will have an obligation to inform the court of the perjury if the client does not correct the false statement.; (2) seek to withdraw if the client will not remedy the false testimony; and (3) disclose the false statement to the court.[3]
• If a lawyer “reasonably believes” (but doesn’t “know”) that a civil client or any witness intends to make false statements, the lawyer has the discretion not to put forward the evidence.  However, if the person is a criminal defendant, that person must be allowed to testify even if the lawyer believes that the client will testify falsely.

You may notice that the rules treat criminal defendants somewhat differently from civil clients or witnesses.  This is because a criminal defendant has a constitutional right to testify on their own behalf.  Prior to 1986 there was a question as to whether the constitutional right to testify included the right to testify falsely.  If so, an ethical rule could not trump the constitutional right.  However, in 1986, the United States Supreme Court in Nix v. Whiteside[4] held that the constitutional right to testify does not include the right to testify falsely.  Therefore, the ethical obligation to advise a client against testifying falsely and revealing the perjury to the court if the client fails to applies to criminal defendants just like every other client and witness.

Some jurisdictions, relying on their state constitutions, take a different approach to criminal defendant perjury.  These jurisdictions hold that a defendant does have the right to testify – even if he will lie.  They may allow a lawyer to present evidence using a narrative approach so that the lawyer is not assisting in the providing the perjury.  Under the narrative approach, the lawyer calls the criminal defendant to the stand and then simply asks the client to tell his story without any guiding questions.  The prosecutor is free to object to inadmissible testimony – but the circumstances may be such that the prosecutor may feel it is better to allow the defendant to tell his story and use cross-examination to expose any gaps or inconsistencies in the testimony.

[1] ABA Rule 3.3(a)(3).

[2] ABA Rule 3.3(a)(3).

[3] ABA Rule 3.3(a)(3), Comment [10].

[4] 475 U.S. 157 (1986).