A lawyer is representing a client charged with a serious felony. The lawyer learns that the client previously made a statement to the police that directly contradicts the client's current desired testimony. The client insists on testifying according to the new, contradictory version of events. The lawyer has attempted to persuade the client to testify truthfully. What is the lawyer's ethical obligation?
- AWithdraw from the representation if the client insists on testifying falsely, if withdrawal is permitted by the court.
- BAllow the truthful portions of the client's testimony and refuse to elicit the false portions.
- CAllow the client to testify as desired, maintaining client confidentiality.
- DInform the court ex parte about the client's intention to commit perjury.
Show answer & explanationAnswer & explanation
Correct answer: A. Withdraw from the representation if the client insists on testifying falsely, if withdrawal is permitted by the court.
If a criminal defendant insists on testifying falsely, the lawyer's primary duty of candor to the tribunal (MRPC 3.3) generally overrides the duty of confidentiality. The lawyer must first attempt to persuade the client not to testify falsely. If unsuccessful, the lawyer should seek to withdraw. If withdrawal is denied or impossible, the lawyer must not elicit the false testimony and may be required to disclose the perjury to the court.
Why the other options are wrong
- B. While this might seem like a compromise, allowing any portion of testimony known to be false, or remaining silent while the client testifies falsely, can still be a violation of the duty of candor and can be seen as assisting perjury.
- C. Allowing the client to commit perjury violates the duty of candor to the tribunal.
- D. Ex parte communication about a client's intent to commit perjury is generally disfavored and usually follows unsuccessful attempts to persuade the client and withdraw.
Client Perjury (Criminal Case)
If a criminal defendant insists on testifying falsely, the lawyer must first attempt to dissuade the client. If unsuccessful, the lawyer must seek to withdraw. If withdrawal is denied, the lawyer must not elicit the false testimony and may be required to disclose the perjury to the tribunal.
- Duty of candor to tribunal generally overrides confidentiality for client perjury.
- First try to persuade client not to lie.
- If persuasion fails, seek to withdraw.
- If withdrawal denied, lawyer must not facilitate perjury.
Memory trick: Persuade, then withdraw, if not, then expose the flaw.