Confidentiality, embodied by the attorney-client relationship, is a bedrock principle of our legal system. It contributes to the trust that is the hallmark of the client-lawyer relationship. Pursuant to comment [1] to R.P.C. 1.6, a client is encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.1 However, these confidences can create problems for lawyers. A case in point is where a criminal defendant client tells his lawyer that he intends to lie on the witness stand. The lawyer is torn between his duty of confidentiality under R.P.C. 1.6 and his duty of candor towards a tribunal pursuant to R.P.C. 3.3. Pursuant to the requirements of R.P.C. 3.3, a lawyer may have to take action adverse to his client. This is contrary to the comfortable model of the adversarial system and creates a dilemma for which there are no clear answers.
Ethical Rules Collide With The Defendant’s Constitutional Rights
To further complicate matters, the analysis of this dilemma must include, not only a lawyer’s ethical obligations to the court and his client, but also a criminal defendant’s Constitutional Rights. The right of the criminal defendant to be represented by counsel is guaranteed by the Sixth Amendment to the U.S. Constitution. A criminal defendant also enjoys the right to testify. This right did not exist at common law where the defendant’s self-interest deemed his testimony suspect. The Constitutional sources for the criminal defendant’s right to testify were announced by the United States Supreme Court in Rock v. Arkansas, 483 U.S. 44 (1987). In Rock v. Arkansas, the Supreme Court held that the right to testify was protected by the Fifth, Sixth and Fourteenth Amendments. In discussing the Compulsory Process Clause which grants the defendant the right to call witnesses in his favor, the Court stated as follows: “In fact, the most important witness for the defense in many criminal cases is the defendant himself. There is no justification for a rule that denies an accused the opportunity to offer his own testimony.”2 Many courts have recognized the interaction between these two constitutional rights. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.”3 As such, a criminal defendant has the right to testify and the right to zealous representation by a lawyer. In United States v. Scott, 909 F.2d 488, the 11th Circuit Court of Appeals held that it was impermissible to force a defendant to choose between these two constitutional rights. The Scott Court reversed a trial court decision which gave a defendant a choice of either proceeding pro se or proceeding through counsel who could prevent Scott from testifying. In Scott the defendant’s lawyer informed the court that she had an ethical obligation to the court to withdraw from the case.
Candor Towards the Tribunal
R.P.C. 3.3 states as follows:
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
Comment [6] to R.P.C. 3.3 offers the following direction:
If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false testimony. If only a portion of a witness’s testimony will be false, the lawyer may call the witness to testify but may not elicit or otherwise permit the witness to present the testimony that the lawyer knows is false.
What does this mean? It is clear based both on R.P.C. 1.6 and R.P.C. 3.3, that a lawyer may seek to withdraw from the representation. This is a good solution for the lawyer if the issue arises far enough in advance, and the lawyer can withdraw without alerting the court to the issue and so preserve the client’s confidence. Often this dilemma does not arise until the eve of trial, or worse, in the middle of trial. At that point, the Court may not permit the lawyer to withdraw. Moreover, it may be impossible to withdraw in a manner that does not breach the confidence. What is the lawyer to do? There are a number of different approaches to this problem:
A. The “Full Advocacy Approach”
The “full advocacy approach,” is promoted primarily by Professor Munroe Freedman. Under this approach, a lawyer, to protect client confidences, may knowingly present perjured testimony, if the lawyer cannot dissuade his client from committing perjury.4 Freedman rejects the idea of withdrawing in the midst of trial because this is tantamount to blowing the whistle on the client. The full advocacy approach comes down on the side of confidentiality. Ergo, the only reason that the lawyer believes that the client is going to lie as because of a confidential attorney-client communication. It also recognizes the loss of trust and the corresponding impact of the disclosure on the attorney-client relationship. Instead of vigorous advocacy, the client perceives that their lawyer has switched sides and is playing for the prosecution.
B. The Narrative Approach
The Defendant takes the stand and delivers his statement in narrative form. The defense attorney does not elicit the perjurious testimony by questioning and cannot argue the false testimony in closing argument. Under this procedure the defendant is afforded both his right to speak to the jury under oath and his constitutional right to assistance of counsel. In addition, the defense attorney did not elicit false testimony.
This approach was followed by the Florida Supreme Court in The Florida Bar v. Rubin, 549 So. 2d 1000 (1989). The Rubin case offers a cautionary tale that illustrates the predicament that befalls a lawyer when he believes his client is going to lie on the stand. Ellis Rubin was representing Russell Sanborn on a charge of first-degree murder. Prior to jury selection, Rubin asked the court for permission to withdraw without providing specific reasons. The Florida Supreme Court interpreted this conduct as Rubin informing the court that his client was planning to testify untruthfully. The court denied Rubin’s motion to withdraw and ordered him to proceed to trial. Rubin sought certiorari, which was denied. When the case returned to the trial court, Rubin refused to proceed to trial. He believed that he was bound by the ethical rules and could not participate in presenting false evidence to the court. Rubin was held in contempt and served thirty (30) days in jail and was later publicly reprimanded through a disciplinary proceeding. The Rubin Court held that the lawyer must obey the orders of the court, even when it believes them to be incorrect. The Rubin Court approved the narrative approach as a way to balance the rights of the defendant and the ethical concerns of the lawyer.
The 11th Circuit Court of Appeals took this a step further in United States v. Long, 857 F.2d 436. In Long, the lawyer disclosed to the court the possibility that his client would commit perjury. The Long Court held that the trial court should conduct an evidentiary hearing to determine whether counsel had a firm basis for his belief and to determine whether the defendant understood his rights, the consequences of his actions and any waivers of those rights.
There are obvious problems with the narrative approach. As an initial matter, it is premised on the disclosure of the confidence - with the lawyer as whistleblower. It is hard to imagine how an evidentiary hearing regarding the basis for the lawyer’s belief, would be anything but a full-scale invasion of the confidential communication. With the breach of the privilege, would come the corresponding loss of trust between the attorney and the client. Moreover, this untenable situation would exist where the lawyer would not be allowed to withdraw. The lawyer’s reward for this would likely be a claim of ineffective assistance of counsel by the client. The Supreme Court held in Nix v. Whiteside, that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when the attorney refuses to cooperate with the defendant is presenting perjured testimony.5 However, based on the strained relationship between the lawyer and the client, there would be a litany of additional complaints. The most obvious problem with the narrative approach is the result of the case. It is hard to believe that after being telegraphed the lawyer’s suspicions of perjury, the trier of fact would rule in favor of the criminal defendant - even if the defendant ultimately testified truthfully. As such, this balancing approach seems to pay lip service to the protection of the defendant’s rights while ignoring the obvious result.
C. The “Knowledge” Based Approach
In drafting Rule 3.3 of the Model Rules of Professional Responsibility, the American Bar Association (“ABA”) agreed with the critics and rejected the narrative approach. The ABA also rejected the “full advocacy” approach.6 ABA Model Rule 3.3 requires a lawyer to reveal the perjury, if necessary to rectify the situation. The Illinois Rules of Professional Conduct are based on the ABA Model Rules. The comments to R.P.C. 3.3 provide the following guidance:
[8] The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact. A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances. See Rule 1.0(f). Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
[9] Because of the special protections historically provided criminal defendants, however, this rule does not permit a lawyer to refuse to offer the testimony of such a client where the lawyer reasonably believes, but does not know that the testimony will be false.
The key to this approach is knowledge. Pursuant to this approach, how does the lawyer “know” what is the truth and what is the lie? Moreover, just because the lawyer thinks the client will lie, does not mean they will. This philosophical exercise in epistemology seems a little disingenuous. To avoid the invasion of the privilege and the defendant’s Constitutional Rights, it seems to encourage the lawyer to bury his head in the sand. The lawyer must try and persuade the client not to perjure himself and explain the consequences of the proposed course of conduct to the client under R.P.C. 1.2(d). Arguably, the lawyer would try and avoid gaining any actual knowledge during this process. The lawyer would then allow the client to testify because he would not “know” what the client was going to do. However, if the client did commit perjury, and the lawyer “knew” the lawyer is required to take remedial measures which may include disclosure—if necessary.
While R.P.C. 3.3 is the operative rule, the lawyer must still determine whether the information can be disclosed pursuant to R.P.C. 1.6.
R.P.C. 1.6 Confidentiality of Information
Pursuant to R.P.C. 1.6:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.
(b) A lawyer may reveal information relating to the representation of the client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a crime in circumstances other than those specified in paragraph (c);
(2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interest or property of another and in furtherance of which the client has used or is using the lawyer’s services.
(c) A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
If the lawyer reasonably believes the client has committed perjury, the analysis seems to fall under R.P.C. 1.6(c). This perjury does not constitute a future crime pursuant to R.P.C. 1.6(b)(1) because the conduct has already occurred. In addition, it does not involve fraud which will result in substantial injury to the financial interests or property of another. As such, the lawyer must analyze the facts of their individual case and determine whether disclosure is necessary to prevent reasonably certain death or substantial bodily harm.
Moreover, research shows that R.P.C. 1.6 is strictly construed. The case of Alton Logan is instructive. Two attorneys, Dale Coventry and Janie Kunz, knew that their client, Andrew Wilson, had committed the murder for which another man, Alton Logan, was serving a life sentence.7 Wilson had confessed to the crime while Alton Logan was being tried. Unsurprisingly, Wilson did not authorize his lawyers to disclose this information and ethical rule 1.6 required the lawyers remain silent. Twenty-six years later, after Wilson died, the two lawyers signed affidavits revealing the information on the basis that Wilson had agreed to the disclosure after his death. There was no question that the two attorneys could reveal the information without the consent of their client.
Similarly, a North Carolina lawyer, Staple Hughes, revealed his client’s confession in 2004, hoping to free Lee Wayne Hunt from his life sentence in prison.8 According to Hughes, twenty-two years earlier his client confessed to Hughes that he had committed the murders for which Hunt was convicted. Hughes’ client had also died. The judge refused to admit Hughes information because “Mr. Hughes has committed professional misconduct.” Hughes was referred to the North Carolina bar for disciplinary action for violating the attorney client privilege.
These stories provide a gloss which will be helpful in any analysis under R.P.C. 1.6. The lesson is that it is no small matter to breach the privilege.
Conclusion
There is no simple solution to this dilemma. The approaches seem to vary based on their sources. From the lawyer’s perspective, they want to be released from this nightmare as quickly as possible. The “full advocacy” approach is mostly supported by academics who give more weigh to the rights of the defendant. It is not surprising that judges were the biggest proponents of the “narrative approach.” By this approach the judge keeps the lawyer in the case and does not have to deal with a difficult pro se litigant. In addition, judges ensured they got all the information. The ABA approach attempts to balance the competing rights and duties but is not that intellectually honest. However, there are some principles that can be applied to the analysis:
• Always advise your client to tell the truth;
• Advise your client, pursuant to R.P.C. 1.2 regarding the consequences of their course of conduct. Namely, if they tell you they are going to lie, you will have to withdraw or disclose the untruth to the court;
• If you choose to withdraw, do so early in the case;
• Make the reasons for the withdrawal as discrete as possible to protect the privilege;
• If the court will not allow you to withdraw, you may ask the defendant about things you believe to be true;
• If there are facts that you are uncomfortable with, pose only general questions to avoid intentionally suborning perjury;
• You cannot refuse to allow the defendant to testify;
• If you know the client will perjure himself, it is easier under R.P.C. 1.6 to disclose this before the client testifies because under R.P.C. 1.6(b)(1), it would be necessary to prevent the client from committing a crime;
• If the perjury is discovered, after the fact, it is harder to disclose the confidence under R.P.C. 1.6(c);
• You cannot refer to any false facts testified to by your client during your closing argument;
• The duty to disclose under R.P.C. 3.3 terminates at the conclusion of the proceeding. See R.P.C. comment [13].
If faced by this dilemma, a lawyer should review the cases, the approaches and the rules of professional conduct. The lawyer must carefully analyze the facts of their situation. It may also be helpful to call the confidential hot line at the ARDC for advice or to pose a hypothetical to an experienced colleague. Unfortunately there is no simple resolution to this question. ■
__________