Following is from the Bar Association Ethics Panel:
What are the ethical obligations of an attorney who, unaware his client will lie, hears the client commit perjury or otherwise materially mislead a tribunal?
2 Opinion: Counsel who knows that a client has materially misled the court may not remain silent and continue to represent the client; to do so would be “assisting” the client in committing a fraud on the court. Rather, counsel is obligated to remonstrate with the client and attempt to persuade the client to rectify the misleading or untruthful statements to the court. If this is unsuccessful, counsel must seek to withdraw. If withdrawal is denied, counsel must disclose the fraud to the court.
3 Facts: This issue came to the Committee in the narrow setting of a criminal sentencing hearing in which the court asks the lawyer’s client, who is not under oath, about the client’s prior criminal history. The defendant misleads the court and gives false material information that counsel knows to be untruthful. Counsel is now confronted with ethical considerations.
A. Counsel may not remain silent and continue to represent the client; to do so would be “assisting” the client in committing a fraud on the court.
4 Rule 3.3(a)(2) provides that “[a] lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.”1The issue on the facts presented here is whether a lawyer, by remaining silent in response to unanticipated false client testimony not presented by the lawyer, is “assisting” the client in committing a fraud on the court.
5 Ethical dilemmas arising under Rule 3.3 present difficult issues requiring balancing of competing duties. A lawyer’s duty of candor to the court must be balanced against the duty of loyalty to and zealousness on behalf of a client and the duty to maintain confidential client information.2
6 After the adoption of the Model Rules of Professional Conduct by the American Bar Association, the ABA’s Committee on Professional Ethics reconsidered its prior opinions regarding a lawyer’s duties in response to false testimony by a client. In ABA Formal Opinion 87-353, the ABA Committee stated that Model Rules 3.3(a) and 3.3(b) were a “major policy change with regard to a lawyer’s duty . . . when his client testifies falsely. It is now mandatory under [Model Rule 3.3] for a lawyer who knows the client has committed perjury, to disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury.”3That opinion considered the same facts presented here: “judge asks the defendant whether he has a criminal record and he falsely answers that he has none.”4The opinion states that “where the client has lied to the court about the client’s criminal record, the conclusion of Opinion 287 [decided in 1953 under the 1908 Canons of Professional Ethics] that the lawyer is prohibited from disclosing the client’s false statement to the court is contrary to the requirement of Model Rule 3.3. This rule imposes a duty on the lawyer, when the lawyer cannot persuade the client to rectify the perjury, to disclose the client’s false statement to the tribunal . . . .”5