A lawyer represents a client in a criminal case. During a private conversation, the client admits to the lawyer that he committed the crime and has fabricated an alibi, which he intends to present in court. The lawyer advises the client that presenting false testimony is perjury and ethically unacceptable. The client insists that he will testify to the fabricated alibi regardless of the lawyer's advice. What is the lawyer's ethical obligation in this situation?
- AThe lawyer must persuade the client to testify truthfully, and if unsuccessful, continue the representation without the false testimony.
- BThe lawyer must allow the client to testify as planned, but may not elicit the false testimony.
- CThe lawyer must inform the court of the client's intent to commit perjury.
- DThe lawyer must seek to withdraw from the representation.
Show answer & explanationAnswer & explanation
Correct answer: D. The lawyer must seek to withdraw from the representation.
If a lawyer knows that a client intends to commit perjury, the lawyer must first attempt to persuade the client not to do so. If unsuccessful, and if withdrawal is permitted by the tribunal, the lawyer must seek to withdraw. If withdrawal is not permitted, the lawyer must take remedial measures, which may include disclosure to the tribunal. However, a lawyer cannot knowingly offer false evidence.
Why the other options are wrong
- A. While persuasion is the first step, if unsuccessful, the lawyer cannot simply continue representation 'without the false testimony' if the client still intends to perjure themselves. This would put the lawyer in a position of knowingly allowing false evidence to be presented. Withdrawal or remedial action is required.
- B. This is a common misconception; a lawyer cannot allow a client to commit perjury, even if they don't elicit it directly. The lawyer has a duty to prevent it.
- C. Direct disclosure to the court is a last resort and often only after attempts to persuade and withdraw have failed, or if the perjury has already occurred. It is not the immediate first step upon learning of intent.
Client Perjury (Criminal Case)
If a criminal client intends to commit perjury, the lawyer must first attempt to dissuade them. If unsuccessful, the lawyer must seek to withdraw. If withdrawal is denied, the lawyer must take remedial measures, potentially including disclosure to the court, as the lawyer cannot offer false evidence.
- Persuade client not to perjure.
- If unsuccessful, seek to withdraw.
- If withdrawal denied, remedial measures (e.g., disclosure).
- Lawyer cannot offer false evidence.
Memory trick: Perjury Protocol: Persuade, Pull Out, or Punctuate (Disclose).