State Bar of Arizona Ethics Opinions
92-02: Confidentiality; Candor to the Tribunal
Criminal defense attorney's client is using two different names in two different criminal proceedings. Committee discusses whether the attorney has an obligation to inform the court.
Lawyer has been retained by “John Doe” to represent him in Superior Court criminal proceedings. John Doe states that his real name is "John Doe", and this representation is made to the court. While John Doe is released on bail, he is rearrested on other charges. This time he tells the authorities that his name is John Smith.
After receiving a call from the defendant’s wife, lawyer visits John Smith in jail and discovers that he is, in fact, John Doe. At this time, the defendant advises lawyer that his real name is John Smith. The defendant wants lawyer to represent him in both cases, but he does not want lawyer to reveal to the two different courts that he has been using two names and that he is in fact the same person.
Is the inquiring lawyer ethically obligated to reveal to the court that his client has used a false name?
ETHICAL RULES INVOLVED
ER 1.2. Scope of Representation
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
ER 1.6. Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).
(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.
(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.
ER 3.3 Candor Toward the Tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(4) except as required by applicable law, offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.
In the context of an attorney-client communication, the client advises the lawyer that he is using a false name with the court. This request for an opinion requires that the committee determine whether, with ethical propriety, a lawyer must disclose this communication to the court.
I. Confidentiality under ER 1.6
ER 1.6(a) sets forth the core ethical obligation of confidentiality:
"A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, . . ."
ER 1.6(a) is much broader than the legal attorney-client privilege. ER 1.6 confidentiality applies to any "information relating to representation." Moreover, the duty of confidentiality continues after the termination of the attorney-client relationship.
Comment to ER 1.6; Arizona Opinion No. 81-22 (July 24, 1981) (attorney holding letter for client to be released in the event of client’s sudden and violent death; he has not heard from client in several years); and Arizona Opinion No. 87-22 (September 18, 1987) (revelation of client identity after termination of relationship).
Under ER 1.6, the communication from the client to the lawyer that the client is using a false name is presumptively confidential, because it is information relating to the representation communicated by the client. See our Opinion No. 87-22, supra (client’s name must be kept confidential after termination of representation, where client does not wish to have his name revealed).
However, there are several exceptions to this general rule of confidentiality. One of them exists as to threatened future crimes by the client. ER 1.6(b) states that a lawyer shall reveal information necessary to prevent a client from committing a criminal act that may result in death or substantial bodily harm. As to other types of crimes, ER 1.6(c) provides that a lawyer may reveal the information necessary to prevent the crime.
The rules for disclosure of a present and continuing crime, rather than a threatened future crime, are different. With the exception of certain frauds on the court listed in ER 3.3, discussed below, a lawyer may not ethically reveal the client’s commission of a past crime. Where disclosure of a client’s current and continuing crime would necessarily disclose the client’s past crime, the rule of confidentiality applies. The Comment to ER 1.2 discusses an attorney’s obligations in this situation:
"When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is not permitted to reveal the client’s wrongdoing, except where permitted or required by ER 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawal from the representation, therefore, may be required."
In short, a lawyer may not reveal a client's continuing crime if such a disclosure would also reveal a past crime by the client. See Arizona Opinion No. 78-5 (January 30, 1978) (prospectus which failed to disclose that officer embezzled money); Arizona Opinion No. 82-13 (August 6, 1982) (husband hiding assets from IRS); Arizona Opinion No. 91-02 (January 15, 1991) (worker’s compensation client receiving overpayments from insurance company).
Assuming that the client’s past statement to the court of a false name was a crime, and that the client intends to continue the false statement, the client’s course of conduct involves a past and continuing crime which the lawyer may not reveal under either ER 1.6(b) or (c).
II. Mandatory Disclosure under ER 3.3
The duties of confidentiality also do not apply in the case of perjured testimony or a fraud upon the Court. ER 3.3 (a) (1) forbids a lawyer from making a false statement of material fact or law to a tribunal. ER. 3.3(a) (2) prohibits an attorney from knowingly failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. ER 3.3 (a) (4) provides that an attorney may not knowingly offer false evidence, and requires an attorney to take "reasonable remedial measures" where material false evidence has been inadvertently offered. See also Nix v. Whiteside, 457 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (right to effective assistance of counsel not violated by an attorney who refuses to cooperate in presenting perjured testimony); Arizona Opinion No. 80-23 (October 8, 1980) (attorney must disclose to court that client surreptitiously copied file of opposing counsel). These obligations apply only until the conclusion of the proceeding. ER 3.3(b); Arizona Opinion No. 80-27 (December 12, 1980) (civil client discloses perjury after verdict).
ER 3.3 (a) (1), (2), and (4) permit disclosure only where the fraud is material. We believe that the name of the inquiring attorney’s client, a party to the pending litigation, is a material fact. Therefore, in most situations, ER 3.3 would lead us to conclude that, if the inquiring attorney's client has already misrepresented his name to the court, the inquiring attorney should take "reasonable remedial measures" to correct the fraud. However, we cannot end our analysis here, because the situation is complicated by the fact that the inquiring attorney’s client is a criminal defendant, who has a constitutional right to testify in his own behalf. As the Comment to ER 3.3 notes, “[d]efense counsel’s ethical options, as circumscribed by the criminal defendant’s fundamental constitutional rights at trial, are still in the process of clarification. ... Therefore, under the Arizona version of ER 3.3, the provisions of subparagraphs (a) (2) and (a) (4) are prefaced by the phrase 'except as required by applicable law.’”
The resolution of the inquiring attorney’s question, then, requires a discussion of the complex issue of the Arizona law relating to perjury by a criminal defendant.
III. Perjured Testimony from a Criminal Defendant
In State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984), the court addressed the issue of probable perjury by third party witnesses. In Lee, a criminal defendant charged with robbery wanted his lawyer to call two witnesses (who had entered into plea agreements with the State) to testify in his behalf. The lawyer, based on his interviews with the witnesses and his knowledge of the case, believed that, if called, they would perjure themselves. The client insisted, nevertheless, that the witnesses be called and the lawyer called them. The lawyer established their identity and asked them to explain what happened on the night of the robbery. Each of the witnesses then gave a narrative account. During a recess, the lawyer advised the court of his belief that the witnesses had committed perjury, and announced that he might not give a closing argument. Defense counsel subsequently waived his closing argument.
On the convicted defendant’s appeal on a claim of ineffective assistance of counsel, it was held that the decision of what third party witnesses to call at trial is a tactical decision of counsel, not the client. A lawyer does not have to obey a client’s wishes on what third party witnesses to call. If a lawyer has actual knowledge that a witness will commit perjury, the lawyer cannot call the witness even if the client insists. The opinion summarized a lawyer's responsibility in such a situation as follows:
Where a defense counsel determines that it would be unethical or contrary to a client’s best interest to call a particular witness urged by a client, counsel must refuse to do so. If the refusal to call the witness causes significant antagonism between counsel and client, counsel may request permission to withdraw. ... In requesting permission to withdraw, counsel should not, however, inform the court of the specific basis for the request. Counsel should only state that an irreconcilable conflict has made continued representation extremely difficult.
142 Ariz, at 220. If permission to withdraw is not granted, the lawyer must then present the case as well as he or she can. If perjured testimony has come in, this means, at a minimum, that the lawyer cannot argue the perjured testimony to the fact finder in closing argument.
As set out below, the application of these standards to a criminal defense client becomes somewhat problematical in the light of a criminal defendant’s constitutional rights to take the witness stand and to receive effective assistance of counsel. However, in the absence of these competing constitutional concerns, the standards are more straightforward. In a civil case, it is unethical to call any witness -- client or third party -- who, a lawyer knows, will commit perjury.
The majority opinion in Lee discusses counsel’s obligations assuming that a lawyer "knows" perjury will be committed. Applying Lee to a case where a lawyer has a reasonable belief of that type, but does not know, is more difficult. Under ER 3.3(c), if a lawyer "reasonably believes" that a witness will commit perjury, but does not have actual knowledge that that will occur, and it is in the client’s best interests to call the witness, the lawyer is permitted to call the witness.
In criminal cases, the rules relating to client perjury are different from those pertaining to civil cases, since the determination of the question as to whether the criminal defendant should testify is to be made by the client, not by the lawyer. In Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978), the defendant was charged with murder. Several eyewitnesses testified that defendant had walked up to the victim and shot him. Trial was to the court. On the witness stand, defendant denied shooting the victim. Counsel requested a recess and moved the court in chambers (in the absence of defendant) to withdraw, stating that he could not give a reason for such request. The court denied the motion. Counsel then stopped questioning defendant and made no reference to defendant’s testimony in closing argument.
The Ninth Circuit held that, under these facts, counsel’s conduct amounted to an unequivocal statement to the fact finder that defendant was lying, denying defendant a fair trial. When discussing what should have been done, the court approved Section 7.7 of the ABA Defense Function Standards (Approved Draft 1971) which states:
“Testimony by the defendant.
(a) If the defendant has admitted to his lawyer facts which establish guilt and the lawyer's independent investigation establishes that the admissions are true but the defendant insists on his right to trial, the lawyer must advise his client against taking the witness stand to testify falsely.
(b) If, before trial, the defendant insists that he will take the stand to testify falsely, the lawyer must withdraw from the case, if that is feasible, seeking leave of the court if necessary.
(c) If withdrawal from the case is not feasible or is not permitted by the court, or if the situation arises during the trial and the defendant insists upon testifying falsely in his own behalf, the lawyer may not lend his aid to the perjury. Before the defendant takes the stand in these circumstances, the lawyer should make a record of the fact that the defendant is taking the stand against the advice of counsel in some appropriate manner without revealing the fact to the court. The lawyer must confine his examination to identifying the witness as the defendant and permitting him to make his statement to the trier or the triers of the facts; the lawyer may not engage in direct examination of the defendant as a witness in the conventional manner and may not later argue the defendant’s known false version of facts to the jury as worthy of belief and he may not recite or rely upon the false testimony in his closing argument.”
575 F.2d at 730, n.3.
See also State v. Jefferson, 126 Ariz. 341, 615 P.2d 638 (1980).
As noted above, the committee believes that the rules applicable to client perjury in a criminal setting should apply to this fact situation. Accordingly, the inquiring lawyer should advise the client that he cannot use a false name with the court. If the client insists on using a false name, the lawyer must move to withdraw citing irreconcilable differences, but not telling the court of the client’s use of a fictitious name. If the motion to withdraw is denied, then counsel must proceed but cannot rely upon or argue the client’s false statement in his or her further representation of the client.
Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.
©State Bar of Arizona 1992
Call the State Bar of Arizona Ethics Department at (602) 340-7236 for a copy of this Opinion.