State Bar of Arizona Ethics Opinions

93-10: Perjury
7/1993

Ethical responsibility to advise court of potential client perjury.



FACTS

The inquiring law firm ("firm) represents an individual ("Client") who has given conflicting testimony in two independent proceedings. The firm represents the Client, among other individuals, corporations and trusts, in litigation presently pending in Superior Court ("Case A"). The firm's Client testified in Case A, consistent with the allegations in the Complaint, that Trust A owned certain claims involved in the litigation. The proceedings in Case A were stayed by another court when the corporation clients thereafter became the subject of the court's receivership order.

The Client, trustee of several trusts, thereafter initiated an independent proceeding in Bankruptcy Court (Case B"). The firm never represented Client or became involved in Case B. The Client testified in Case B that the same claims involved in Case A had been owned by Trust B since a certain date. The date given by the Client in his testimony indicated that Trust B had owned the claims at the same time (according to the Client's testimony in Case A) that Trust A owned such claims.

Thereafter, opposing counsel in Case A brought the Client's apparent inconsistent testimony to the attention of the firm, indicating their intent to file a motion to dismiss the claims of Trust A in Case A, in view of the Client's testimony. After the firm brought this inconsistency to the attention of the Client, the Client indicated that his testimony was incorrect in Case B, but was correct in Case A. After some delay, the Client furnished the firm with a copy of an assignment document in which the date indicated that the Client had given correct testimony in Case A. The Client assured the firm that he would notify counsel representing him in Case B of the inaccuracy of his testimony in that case.

As a result of the foregoing circumstances, the firm has concerns about the truth of the allegations in Case A. Although the firm is aware that the Client has given inconsistent testimony, the firm does not "know to a certainty" that the allegations or their Client's testimony in Case A are false.

 

QUESTIONS

1. In the proceeding ("Case A") in which the firm represents Client, is the firm under a duty to disclose to the Court the existence of conflicting testimony offered by Client?

2. Where the firm knows that Client has offered false testimony in a proceeding ("Case B") in which the firm does not represent Client, must the firm disclose this information to the Court in that independent proceeding?

 

ETHICAL RULES INVOLVED

 

Terminology.

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"Knowingly", "Known," or "Knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.

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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).

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(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

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Comment

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First, the lawyer may not counsel or assist a client in conduct that is criminal or fraudulent. See ER 1.2(d). Similarly, a lawyer has a duty under ER 3.3 (a) (4) not to use false evidence. This duty is essentially a special instance of the duty prescribed in ER 1.2(d) to avoid assisting a client in criminal or fraudulent conduct.

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The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See ER 2.2, 2.3, 3.3 and 4.1. ....

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ER 3.3.                   Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

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(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;

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(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.

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COMMENT

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When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered, or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.

The rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement.....

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OPINION

The Ethical Rules acknowledge the apparent tension between the lawyer's duty of confidentiality owed to the client and the duty of candor owed to the court as an officer of the court. This tension is even greater where the lawyer comes to know that he or she has offered false material evidence. In those cases where the lawyer has a clear duty to disclose information to the court to avoid a fraud being committed on it, this tension has been resolved in favor of the lawyer's duty to the court, as the lawyer's confidentiality duties to the client do not apply where the client seeks the unlawful objective of corrupting the judicial process by false evidence. See ABA Formal Opinion 87-353 (April 20, 1987) (ER 3.3 intended to guide conduct of lawyer as officer of court as a preventive measure to protect against client perjury contaminating the judicial process). The lawyer's duty to disclose false testimony to the tribunal is, however, limited to the situation where the lawyer knows that the client has given false material testimony, ordinarily based on the client's own admissions to the lawyer. See ABA Formal Opinion 87-353, supra. Here, the Client's testimony is material. The lawyers' knowledge, however, is less clear.

The lawyer must have actual knowledge of the falsity. "[E]ven well-founded suspicions are not enough." See G. Hazard, Jr. & W. Hodes, The Law of Lawyering, Vol. 1 §3.3:208 at p.589 (Supp. 1991). See also, U.S. v. Long, 857 F.2d 436 (8th Cir. 1988)

In the present situation, the Client has not admitted to the lawyer that the testimony he gave was false. The Client maintains that he gave false testimony in an independent proceeding in which the Client is represented by another lawyer. While the Client has presented to the inquiring lawyer a document supporting the veracity of his testimony in Case A, the lawyer still has doubts regarding the truth of this testimony; however, because the lawyer does not have knowledge that the Client has offered false testimony to the Court, he does not have a duty to disclose this information to the Court in Case A.

In view of his doubts about the truth of the Client's testimony, however, it is prudent for the lawyer to make further inquiry to resolve those doubts. The rule requiring the disclosure of false testimony does not allow a lawyer to fail to make inquiry in order to avoid obtaining "knowledge" of the falsity. Moreover, substantive law in the form of Rule 11 of the Arizona Rules of Civil Procedure, may also impose an obligation on the lawyer to make inquiry to resolve his doubts. See e.g., Kendrick v. Zanides, 609 F. Supp. 1162, 1172 (N.D. Cal. 1985) (under Rule 11, a lawyer must investigate when he possesses a document refuting a client's allegations).

If, during the course of that inquiry, the lawyer becomes convinced that he has proffered false testimony, then, of course, he would have an obligation to disclose that fact to the Court in Case A. If he does not obtain such knowledge, there is no such disclosure duty.

ER 3.3 does not address the issue of the lawyer's duty upon becoming aware that a client has offered false testimony in a matter in which he does not represent the client. A client's communication that he testified falsely in another proceeding in which the lawyer does not represent him would be confidential under ER 1.6. ER 3.3 does not provide an exception to the confidentiality of such information except where disclosure to a tribunal is necessary to avoid assisting a criminal or fraudulent act by the client. ER 1.6, however, allows but does not require (except in cases likely to result in death or substantial bodily harm) disclosure of the client's intention to commit a crime.

Thus, in the instant case, since the lawyer does not represent the client in Case B, he is not in the position of potentially assisting in a criminal or fraudulent act through the offering of false evidence in Case B. Therefore, he is not obligated to make a disclosure in Case B. Whether he is permitted to disclose the fact that false testimony has been given in Case B to the Court in Case B or anyone else, depends upon whether it would be a crime for the client to leave the testimony uncorrected and upon the lawyer's knowledge as to the client's intent. See our Opinion No. 92-2 (March 12, 1992). These issues are beyond the committee's jurisdiction but must be considered by the lawyer before making any disclosure of information which is confidential under ER 1.6.

 

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 1993

 




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