MCLE Self Study

By Matthew Hodel

Hodel

"There's a little bit of perjury in every trial," I once heard an appellate court judge say. Many trial lawyers would find that to be a truism. Not so obvious, however, is how to juggle the competing ethical responsibilities of advocacy, confidentiality, and candor to the court when confronted with known client perjury or client-endorsed perjury.   

California attorneys cannot automatically abandon even the most perjurious of clients during a civil trial. Absent client consent, they cannot disclose the perjury to the court.  Instead, they must first "remonstrate" with their clients (defined as "presenting and urging reasons in opposition") and explore options to correct or mitigate the perjury, which may include seeking to be relieved as counsel. Remaining even temporarily in the clutches of the perjuriously minded client may be a dance with the devil, but it is ethically required.

This article reviews those issues as they arise in civil cases, and concludes with notes on the differing treatment under the ABA rules and the special problem of client perjury in criminal cases.

What is Perjury?

Perjury is "willfully" false testimony under oath on a "material" matter. Penal Code Section 118. "Material" means the testimony "could probably influence the outcome of the proceeding." People v. Rubio (2004) 121 Cal. App.4th 927, 933. "Suborning" perjury, i.e., procuring another person to commit perjury, is punishable just as if the procurer directly committed perjury. Penal Code section 127.

What is "Knowledge" of Perjury?

It is difficult to know whether a witness has intentionally lied about a material matter. State Bar of California Formal Opinion No. 1983-74. Thus, Rule of Professional Conduct 3.3(a)(1) requires actual knowledge of falsity: "A lawyer shall not: … offer evidence the lawyer knows to be false." Rule of Professional Conduct 1.0.1 defines "know" as "actual knowledge of the fact in question" and adds: "A person's knowledge may be inferred from circumstances."

Mere suspicion of falsity does not constitute knowledge. Attorneys "may ethically present evidence that they suspect, but do not personally know, is false …. Presenting incredible evidence may raise difficult tactical decisions—if counsel finds evidence incredible, the fact finder may also—but, as long as counsel has no specific undisclosed factual knowledge of its falsity, it does not raise an ethical problem." People v. Bolton (2008) 166 Cal.App.4th 343, 357. See also, Nguyen v. Knowles, 2010 WL 3057678 *12 (E.D. Cal. Aug. 3, 2010) ("Precedent in this and other circuits suggests that an attorney should have a ‘firm factual basis' for believing that a client will testify falsely before acting on such a belief").

Duty of Candor to the Court  

The duty not to solicit or introduce testimony known to be false is stated in Rule of Professional Conduct 3.3(a)(3) ("Candor Toward the Tribunal") and Business and Professions Code section 6068(d). Case law is the same: "[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution … as well as severe disciplinary action." In re Branch (1969) 70 Cal.2d 200, 211. Even if the fabrications are the work of another, the attorney, upon learning of their falsity, cannot continue to assert their authenticity. In the Matter of Temkin (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 321, 330.

In addition, Business and Professions Code section 6106 proscribes "the commission of any act involving, moral turpitude, dishonesty or corruption" and section 6128 (a) makes it a misdemeanor for an attorney to engage or consent to "any deceit or collusion … with intent to deceive the court or any party."

Duty of Advocacy: Resolve Doubts in Client's Favor

Attorneys are obligated to represent their clients zealously and are entitled to resolve all doubts about the credibility of evidence in their client's favor. People v. McKenzie (1983) 34 Cal.3d 616, 631; People v. Crawford (1968) 259 Cal.App.2d 874 ("attorney should represent his client to the hilt"); McCoy v. Court of Appeals of Wisconsin (1988), 486 U.S. 429, 444 ("In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.").

Duty of Confidentiality

The State Bar Act requires attorneys to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Business and Professions code section 6068(e)(1). Violating this rule constitutes a direct violation of the Rules of Professional Conduct. Rule of Professional Conduct 1.6 (a).

Without question, the client's private confession to perjury is a confidential communication protected by the attorney-client privilege. It is also protected by the broader duty of confidentiality which precludes an attorney from disclosing matters that might cause a client embarrassment. In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar. Ct. Rptr. 179, 189; Cal. State Bar Formal Opn. No. 2016-195. Even the discovery that a non-client witness has lied will qualify as a protected "client secret" if it is information learned "by the lawyer during the professional relationship … which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client." Cal. State Bar Formal Opns. Nos. 2016-195 and 1993-133.

Balancing Advocacy, Candor and Confidentiality: Remonstrate

Assume, in a civil case, the attorney becomes aware the client or the client's witness intends to commit, but has not yet committed, perjury at trial. The attorney must first remonstrate with the client, which is the preferred immediate course of action. Rule of Professional Conduct 3.3, Comment [4] ("If a lawyer knows 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 and, if unsuccessful, must refuse to offer the false evidence.").

"Remonstration first" must stem from the recognition that withdrawing from the representation may not be effective in eliminating the threat of perjury to the case. New counsel, upon learning of the intended perjury, may seek to withdraw as well, causing a cycle of continuances and counsel substitutions. Or, the client may not inform new counsel of the perjury. Or even worse, new counsel may act unethically by going along with the perjury. People v. Johnson (1998) 62 Cal.App.4th 608, 623.

The easiest option is to simply to refuse to offer the testimony. This refusal would be within the attorney's authority, as "captain of the ship" in civil cases, to control general matters of strategy, even over the client's objection. Blanton v. Womancare (1985) 38 Cal.3d 396, 404. It also specifically allowed by Rule of Professional Conduct 3.3(a)(3) ("a lawyer may refuse to offer evidence … the lawyer reasonably believes is false.") (Emphasis added).

Assume, however, that during trial the attorney learns, from client, that client's witness has already committed perjury. Client nonetheless instructs attorney to continue to use the testimony. Assume also that attorney believes that client is likely to win the case based upon the perjured testimony and lose without it.

Again, the first duty is to remonstrate with the client by employing "reasonable remedial measures … which a reasonable attorney would consider appropriate under the circumstances to comply with the lawyer's duty of candor to the tribunal." Rule of Professional Conduct 3.3, Comment [5]. Such measures "include explaining to the client the lawyer's obligations under this rule and, where applicable, the reasons for the lawyer's decision to seek permission from the tribunal to withdraw, and remonstrate further with the client to take corrective action that would eliminate the need for the lawyer to withdraw." Id. Corrective action would include striking or correcting Witness's false testimony by stipulation or motion.  Cal. State Bar Formal Opn. No. 1983-74.

Such corrective measures, however, do not include disclosure of client confidential information. Thus, the perjury cannot be disclosed to the court absent client consent. Rule of Professional Conduct 3.3, Comment [5].

If the client rejects the remonstration, the attorney could consider moving to strike the false testimony even though the client objects. It is debatable, however, whether the metaphorical "ship's captain" has the authority, even in a civil case, to act, against the client's instructions, in a way that would sink the ship. Here this is a concern because the false testimony is crucial; without it the case may be lost. Blanton v. Womancare, Inc., supra, 38 Cal.3d at 404–05 ("An attorney is not authorized, however, merely by virtue of his retention in litigation, to ‘impair the client's substantial rights or the cause of action itself.'").

Seeking to Withdraw from the Representation

Under both scenarios, there may be grounds to seek to withdraw from the representation. Under Rule of Professional Conduct 1.16 withdrawal may be permissive or mandatory, depending upon the facts. There are many permutations, but it should be emphasized that seeking to withdraw becomes mandatory where the attorney knows or reasonably should know that the continued representation will result in a violation of the ethical rules or the State Bar Act. Rule of Professional Conduct 1.16 (a)(2). Or, where there has been significant deterioration of the attorney-client relationship. Rule of Professional Conduct 3.3, Comment [8] (mandatory duty to seek withdrawal if "the lawyer's compliance with this rule results in a deterioration of the lawyer-client relationship such that the lawyer can no longer competently and diligently represent the client.")

In the hypothetical where the client will not agree to strike the perjured testimony, and insists that the lawyer continue to use it, the need for mandatory withdrawal becomes more likely. Crucial testimony is now known to be perjured. The attorney's silence, especially if the attorney previously advocated based on the false testimony, could be construed to be an "implicit consent to the deception." Under these facts an attorney would have good cause to believe that continuing to act as counsel in the trial will lead to a violation of Business and Professions Code sections 6068(b) and (d), 6106 and/or 6128 (a). See Formal Opn. No. 1983-74, supra, at pg. 4 ("Silence and inaction would not be consistent with truth and would constitute, albeit indirectly, in attempt to mislead the judge by an artifice, to wit, the client's false testimony of a material fact."). 

Upon seeking leave to withdraw, the attorney always must take reasonable steps to avoid foreseeable prejudice to the client's rights. Rule of Professional Conduct 1.16 (d). Further, the client should be forewarned that a withdrawal motion may cast an adverse inference upon the client's credibility. Then, in seeking to withdraw, the specific reasons for seeking the withdrawal cannot be disclosed to the court because of the duty of confidentiality. State Bar of California Formal Opinion No. 2015-192; Rule of Professional Conduct 1.16, Comment [4].

If the withdrawal motion is unsuccessful then the attorney must not refer to or rely upon the perjured testimony throughout the rest of the case. The case must be conducted as if the testimony had been stricken. See Formal Opn. No. 1983-74.

Special Problem of Client Perjury in Criminal Cases

Client perjury in criminal cases presents special problems because of the defendant-client's sixth amendment right to testify in their own defense even over their attorney's objections. People v. Johnson (1998) 62 Cal.App.4th 608, 618. There the attorney may allow the client to offer the perjured testimony through a narrative format. 62 Cal.App.4th at 629-630. However, remonstration is the first resort. Rule of Professional Conduct 3.3, Comment [4] (In criminal trials a defense lawyer may offer the defendant's testimony "in a narrative form if the lawyer made reasonable efforts to dissuade the client from the unlawful course of conduct and the lawyer has sought permission from the court to withdraw as required by rule 1.16. The obligations of a lawyer under these rules and the State Bar Act are subordinate to applicable constitutional provisions.") (citations omitted). Use of the narrative approach in a criminal trial has been accepted where a third-party witness is committing perjury. See People v. Gadson (1993) 19 Cal.App.4th 1700, 1712.

Different Treatment Under ABA Rules

Because under the ABA Model Rules the duty of candor trumps the duty of confidentiality, attorneys in jurisdictions following the model rules might have the option of disclosing the perjury to the court. ABA Model Rule 3.3(a) (3) (remedial measures for known false evidence includes, "if necessary, disclosure to the tribunal"); ABA Model Rule 3.3 (c) (duty of candor overrides duty of confidentiality). However, as discussed above, in California the duty of candor does not override the duty of confidentiality; thus, our Commission on the Revision of the Rules of  explicitly declined to allow disclosure as an option. Rule of Professional Conduct 3.3, Comment [5]. Although the ABA rule may be considered by California courts as a non-binding "collateral source" if there is a void in California law, State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App. 4th 644, 655-56, here there is no such void because our rules reject the ABA disclosure option.

Conclusion

Although attorneys may ethically argue evidence of questionable credibility, they may not use or submit evidence they know to be false. When confronted with client or client-witness perjury they must balance their duties of confidentiality, advocacy and candor. They must remonstrate with the client and if that fails they may be compelled to seek withdrawal from the representation.   

Matthew Hodel is a business litigation attorney in Irvine, CA. He is a member of the State Bar of California's Committee on Professional Responsibility and Conduct.