Opinion #140. Obligation to Disclose Client's Perjury to Court

Issued by the Professional Ethics Commission

Date Issued: June 23, 1994

Pursuant to Maine Bar Rule 11(c), a Maine lawyer has requested an advisory opinion concerning the following situation:

Attorney is appointed to represent Client on pending criminal charges. After appointment, but prior to trial, Client confides to Attorney that he, in fact, committed the acts alleged in the indictment. Attorney advises client not to testify at trial; Attorney gives Client the following advice:

  1. If Client testifies, the prosecutor will almost certainly ask whether Client committed the acts alleged in the indictment;

  2. If Client testifies, Client will be obligated to answer the question truthfully;

  3. If Client testifies and denies the acts and refuses to retract the denial, Attorney will move to withdraw from the case; and

  4. If leave to withdraw is denied, Attorney will refuse to argue Client’s denial to the court or jury.

The question presented is whether, under the circumstances described above, the Attorney is required by the Maine Bar Rules to take the additional step of disclosing the Client’s false testimony to the Court.

As an initial matter, the Commission notes that the facts as stated in this inquiry are troubling, given the apparent likelihood that client perjury will occur. If under the circumstances, counsel in advance of trial believes that the prospect of client perjury is virtually inevitable, even though counsel does not in fact know that it will occur, the Commission suggests that the prudent course of action would be for counsel to seek leave from the court for permissive withdrawal from representation pursuant to Maine Bar Rule 3.5(c) in advance of trial (indeed, depending on the circumstances, withdrawal may be required by Maine Bar Rule 3.7(b), prohibiting participation in the creation or preservation of false evidence) in order thereby to avoid complications that may be adverse to the client’s interests as well as to the orderly process of the court, which would likely ensue were withdrawal and substitution of counsel to take place upon the occurrence of perjury after the trial has begun.

Turning to the question presented, the Commission observes at the outset that the circumstances as they are described in this inquiry do not indicate that the lawyer, in advance of the Client’s testifying, clearly knows that the Client will commit perjury. Presumably, the Client will take the stand solely for the purpose of answering such questions as may be put to him by the prosecutor. Since we are unable to conclude that at that juncture the Attorney clearly knows that the Client intends to perjure himself, what is at issue here is whether, in the event that the client commits perjury, through answering questions posed by the prosecutor on cross-examination, the Attorney is required by the Bar Rules to disclose to the Court that the Client has lied on the stand.

OPINION

For the reasons discussed below, the Commission concludes that the Attorney is not required by the Maine Bar Rules to reveal to the Court the Client’s perjury under the circumstances presented. The Attorney, however, may be required as a matter of law to disclose the Client’s perjury. In that regard, counsel should be aware that Maine Bar Rule 3.1(a) states that “Nothing in this Code [of Professional Responsibility] is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation; and the prohibition of certain conduct in this Code is not to be interpreted as an approval of conduct not specifically mentioned.”

Maine Bar Rule 3.6(b) provides as follows:

(b) Disclosure of Fraud. A lawyer who receives information clearly establishing that a client has during the representation perpetrated a fraud upon any person or tribunal shall promptly call upon the client to rectify the same; and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication. If a person other than a client has perpetrated a fraud upon a tribunal, the lawyer shall promptly reveal the fraud to the tribunal (emphasis added).

Maine Bar Rule 3.6(b) derived from DR 7-102(B) of the ABA Model Code. As originally adopted by the ABA in 1969, DR 7-102(B) did not contain the exception, “except when the information is protected as a privileged communication.” In 1974, however, the words “except when the information is protected as a privileged communication” were added to that Disciplinary Rule in order to make the requirements of that Disciplinary Rule conform with DR 4-101 (preservation of confidences and secrets of a client). See ABF Annotated Code of Professional Responsibility (1979) at 306-307, 321-322.

In 1979, the Supreme Judicial Court adopted the Code of Professional Responsibility, including Maine Bar Rule 3.6(c), which was redesignated as Rule 3.6(b) in 1993. As adopted by the Supreme Judicial Court, that Rule is substantially identical with ABA Model Code DR 7-102(B), including the exception, “except when the information is protected as a privileged communication.” Although this exception was adopted in Maine, it was not adopted in most states. See C.W. Wolfram, Legal Ethics (1986)at 658.

Given this history of Maine Bar Rule 3.6(b), the Commission concludes that the Maine Bar Rules do not require disclosure of a client’s perjury on cross-examination once it has occurred if disclosure would involve information protected as a privileged communication.[1] See 1 Law. Man. Prof. Conduct 61:401:

Although the Model Code would permit disclosure of a client’s intention to commit a crime, it would not permit disclosure of a client’s perjury once it has occurred if disclosure involves information protected as a privileged communication.

In this regard, the ABA Model Code and Maine Bar Rule 3.6(b) differ markedly from the 1983 ABA Model Rules. Rule 3.3 of the Model Rules, like the 1969 Model Code prior to the 1974 amendment to DR 7-102(b)(1), requires a lawyer to take remedial measures, including disclosure, when a client has committed perjury, even if the lawyer knows of the client’s perjury because of what would otherwise be a confidential communication. See ABA Formal Opinion 87-353 (April 20, 1987); C.L. Wolfram Legal Ethics (1986) at 659. ABA Model rule 3.3 provides as follows:

Rule 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) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel or;
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of the 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 Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The comment to Model Rule 3.3, however, notes that the disclosure requirement of that Rule “may be qualified by constitutional provisions for due process and the right to counsel in criminal cases.”

Although the exception within Maine Bar Rule 3.6(b) prevents us from concluding that the Maine Bar Rules require disclosure of client perjury on cross-examination once it has occurred if disclosure would involve information protected as a privileged communication, counsel should be aware that disclosure may nevertheless be required as a matter of law. In State v. Gilcott, 420 A.2d 1238 (Me. 1980), the Supreme Judicial Court stated:

The State’s concession [that Gilcott’s former counsel breached his duty to his client] ignores the attorney’s ethical obligation to the court. Counsel have no duty to support a motion having no basis in fact, and, indeed, have an affirmative obligation to inform the court of the falsity of a client’s assertions [citing the oath required of lawyers under 4 M.R.S.A. §806, with a see also citation to Maine Bar Rules 3.6(c) (now designated as Maine Bar Rule 3.6(b) and 3.7(e)(1)(i)].

Id. at 1240.

More recently, in Board of Overseers of the Bar v. Dineen, 481 A.2d 499 (Me. 1984), the Supreme Judicial Court Affirmed a judgment of disbarment of a lawyer who deliberately elicited false testimony from his client on the witness stand. The Court, in no uncertain terms, condemned that conduct, stating:

There is no more egregious violation of a lawyer’s duty as an officer of the court, and no clearer ethical breach.

Id. at 504.

Although the situation in Dineen can be distinguished from the situation here on the basis that in Dineen the lawyer deliberately elicited false testimony, the Court’s opinion in Dineen may nevertheless apply because the Court based its judgment in that case on the lawyer’s “solemn oath to ‘do no falsehood nor consent to the doing of any in court’.” The Court moreover stated:

While the lawyer has a duty to act zealously on his client’s behalf, that duty is subject to ethical limitations which the lawyer may ignore at his peril. Among these is the ‘affirmative obligation to inform the court of the falsity of a client’s assertions’. State v. Gilcott, 420 A.2d 1238, 1240 (Me. 1980). See also M. Bar R. 3.7(e)(1)(i).

Id. at 504.

Given these decisions of the Supreme Judicial Court, both of which contain a “see also” cite to Maine Bar Rule 3.7(e)(1)(i), it is possible that the Supreme Judicial Court may read that Rule so as to require disclosure of client perjury once it has occurred, notwithstanding the “except when the information is protected as a privileged communication” provision of Maine Bar Rule 3.6(b). The Court, however, has not explicitly addressed the meaning and effect of that exception within Maine Bar Rule 3.6(b). Maine Bar Rule 3.7(e)(1)(i) states:

(1) In appearing in a professional capacity before a tribunal, a lawyer shall:

(i) Employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, and shall not seek to mislead the judge, jury, or tribunal by any artifice or false statement of fact or law.

The Reporter’s Notes state that Maine Bar Rule 3.7(e)(1)(i) is taken from Rule 7-105(1) of the California Rules of Professional Conduct, and has no direct counterpart in the ABA Model Code.

In light of the history of DR 7-102 (B)(1) and Maine Bar Rule 3.6(b) discussed above, and considering the explicit and specific exception within Maine Bar Rule 3.6(b), the Commission is unable to conclude that the somewhat less specific language of Maine Bar Rule 3.7(e)(1)(i) would require disclosure of client perjury once it has occurred under the circumstances presented here and where the disclosure involves information protected as privileged communication. For the same reasons, the Commission is unable to conclude that Maine Evidence Rule 502(d)(1) or Maine Bar Rule 3.7(b) mandates disclosure of client perjury under the facts presented here.

The tension between Maine Bar Rules 3.6(b) and 3.7(e)(1)(i) in this respect could be eliminated in a variety of ways, depending on the outcome intended, e.g. (1) by amending Maine Bar Rule 3.6(b) by deleting “except where the information is protected as a privileged communication”; or (2) by amending Maine Bar Rule 3.7(e)(1)(i) to make it clear that the exception within Maine Bar Rule 3.6(b) prevails; or (3) by adopting a Rule similar to ABA Model Rule 3.3 in place of Maine Bar Rule 3.6(b).[2] Unless and until the exception within Maine Bar Rule 3.6(b) is removed by amendment of that Rule, the Commission concludes that the Maine Bar Rules as they presently stand do not require disclosure under the circumstances presented here. Nor, given the specific and explicit exception within Maine Bar Rule 3.6(b), is the Commission able to conclude that the lawyer’s oath overrides that exception under the circumstances presented here. Definitive clarification of the tension between the exception provision of Maine Bar Rule 3.6(b) on the one hand, and the lawyer’s oath on the other, is ultimately a matter of law for judicial determination, and as such is beyond the jurisdiction of the Commission. Resolution of that issue, involving as it does the meaning of the oath required of lawyers and whether the oath supersedes the exception within Maine Bar Rule 3.6(b), is plainly a matter of fundamental importance for the administration of justice in this State.

One member of the Commission dissents from the Commission’s conclusion that the Maine Bar Rules do not require disclosure of client perjury under the circumstances presented here.


Footnotes

[1] For purposes of this Opinion, the Commission assumes that disclosure of client perjury under the circumstances presented would involve disclosure of information which is protected by the attorney-client evidentiary privilege and which is also within the scope of Maine Bar Rule 3.6(h) (preservation of client confidences and secrets). ABA Formal Opinion No. 341 (September 30, 1975) interpreted “privileged communication” in the 1974 amendment to DR 7-102(B) as referring to those confidences and secrets that are required to be preserved by DR 4-101. That Opinion also concluded that when disclosure is required “by a law,” the “privileged communication” exception to DR 7-102(B) is “not applicable and disclosure may be required.”

[2] It is of interest that ABA Model Rule 3.3 has been modified in several states. As noted in 1 Law. Man. Prof. Conduct, 61:404-405, “of the states that have adopted rules based on the ABA Model Rules, the following have amended Rule 3.3 so as to modify the lawyer’s obligations when dealing with a perjurous client.

Arizona, in Rule 3.3(a)(4), qualifies the lawyer’s duty of candor toward the tribunal with a reference to exceptions required by applicable law.

Florida requires that the lawyer’s duty of candor toward the tribunal continue beyond the conclusion of the proceeding. Rule 3.3(b).

Louisiana replaces 3.3(a)(2) with Model Code provision regarding disclosures required by DR 7-102 (A)(3).

Maryland provides that in a criminal case a lawyer need not disclose a client’s past or intended perjury if the lawyer reasonably believes such disclosure would jeopardize any of the client’s constitutional rights. Rule 3.3(e).

New Hampshire omits ABA Model Rule 3.3(a)(2), which states that a lawyer must not knowingly fail to disclose a material fact when disclosure is necessary to avoid assisting a client in a criminal or fraudulent act. The committee that drew up the rules stated that such a provision would conflict with Rule 1.6(b)(1), which make disclosures permissive.

New Jersey adds Rule 3.3(a)(5), which provides that a lawyer shall not knowingly fail to disclose material facts that are likely to mislead the tribunal if counsel were to remain silent.

North Carolina requires that a lawyer withdraw from representing a client who intends to commit perjury, but the lawyer need not disclose the client’s intention to the tribunal. Rule 7.2(B).

North Dakota does not limit Model Rules 3.3(a)(1) and 3.3(d) to “material” facts. Model Rule 3.3(a)(2) is omitted. North Dakota applies a more subjective standard with regard to a lawyer’s right to refuse to offer evidence; the lawyer need only believe the evidence is false. If a lawyer has offered evidence and comes to know of its falsity, he must disclose this fact to the court unless the evidence was part of the testimony of the lawyer’s client. If the evidence was contained in the client’s testimony, the lawyer must make reasonable efforts to convince the client to consent to disclosure; if the client refuses, the lawyer should seek to withdraw without disclosure. If withdrawal is not permitted, the lawyer may continue the representation.

Washington subordinates the duty of candor to the tribunal to the duty of confidentiality impose by Rule 1.6. It also adds a reference to constitutional law defining the right to effective assistance of counsel in criminal cases. Rule 3.3(c), (g).


Enduring Ethics Opinion

Enduring Ethics Opinion #140 [April 2012]