Liar, Liar Pants on Fire:
The Rules For Lawyers Have Changed
"The lawyer is mandated to remedy the falsity, even if it means informing the court that the client is lying ... Thus it is not only truth by others, but as importantly, truth from attorneys that is mandated."
By RICHARD MEEHAN
The Cool Justice Report
Feb. 15, 2008
EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com
The Rules of Professional Conduct (RPC) are the Bible governing lawyer ethics. Despite the cynicism of some wags, we do try to police ourselves as a profession and adhere to a code that places respect for the process above all other considerations.
Lawyers have always had an obligation to be truthful with the court. Overzealous representation should not lead to an attorney misrepresenting the facts or misleading a court on issues of legal authorities. Traditionally, the RPC required that an attorney not participate actively in presenting false testimony before a tribunal. That rule has been amended to demand even more of lawyers.
Rule 1.6 of the RPC requires lawyers to maintain client confidences. The sanctity of the attorney client privilege is no less than the sanctity of the seal of the confessional between priests and penitents.
But what is the lawyer's responsibility when he learns that a client has given false testimony? Does the privilege mandate attorney silence and allow a subversion of the truth finding purpose of the judicial process?
Win at all costs is not acceptable in our profession. Clients may think that they can tell their lawyer the truth of their involvement and then require the lawyer to sit, silently, as they take the witness stand and blatantly lie. They feel that the privilege insulates them from exposure. After all, how can a lawyer rat out his own lying client?
Rule 3.3(a)(3)of the RPC states: "A lawyer shall not knowingly . . . Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal."
It is no longer a judgment call. Lawyers are mandated to inform the court that a witness, including their client, has offered false testimony. Clearly that obligation imposes a duty of diligence upon an attorney, in the first instance, to understand the substance of intended testimony from any witness. Though powerful, the rule does not require the lawyer to judge credibility. In many trials witnesses tell divergent versions of an event. That does not equate to perjury. Honest mistakes and the frailty of human recollection, faulty at times, do not require an attorney to act under this rule.
The rule does not make a lawyer a guarantor that each witness to be offered is completely truthful.
What if a witness has consistently misled the attorney and then testifies in the same manner? Unless the lawyer has reason to know that the information about to be offered is untrue, he or she has not violated this ethical canon. The key word is "knowingly." As lawyers we pride ourselves on being better than average judges of human character, but our judgment is not infallible.
What happens if the attorney learns subsequent to testimony that his witness or even his client has lied under oath? This is where the rule has its greatest impact. The lawyer is mandated to remedy the falsity, even if it means informing the court that the client is lying. The ramifications for the client are considerable. At the very least the client is exposed by his own counsel to a charge of perjury. In the federal system the sentencing judge can increase the severity of the sentence based upon a theory that the defendant has obstructed justice by giving false testimony.
The rule is not limited to court proceedings but, ". . .applies when the lawyer is representing a client in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition." The clear intent of the Commentary and Rule is to require the lawyer to protect any fact finding process from the intrusion of false testimony.
In addition, the rule provides that a lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a previous false statement made by the lawyer. Thus it is not only truth by others, but as importantly, truth from attorneys that is mandated.
The Commentary that accompanies the RPC states provides greater guidance to the bar. Lawyers must attempt, first, to dissuade a client or witness from offering false testimony. Failing that, the rule allows an attorney to refuse to offer evidence that they know to be false even against the client's wishes. In instances where the lawyer subsequently learns of false testimony, he must first remonstrate with the witness in an effort to educate the witness on the need to be candid and to correct the misleading testimony. Failing cooperation from the witness, the lawyer then must act decisively and inform the court of the lies.
As the Commentary states: "The disclosure of a client's false testimony can result in grave consequences to the client, including not only a sense of betrayal but also a loss of the case and perhaps 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."
Thus the integrity of the judicial process far outweighs any false sense of impunity when a client tells his lawyer that he intends to lie on the stand, or the lawyer subsequently learns that such has occurred. Trials are a search for truth, despite Hollywood misconceptions. Lawyers are first and foremost, officers of the court.
Bridgeport attorney Richard Meehan Jr. was the lead defense counsel for former Bridgeport Mayor Joseph Ganim's corruption trial. Meehan is certified as a criminal trial specialist by the National Board of Trial Advocacy since 1994 and serves on the organizations Board of Examiners. He is a Charter Fellow, Litigation Counsel of America -- Trial Lawyer Honorary Society. Meehan has also obtained multi-million dollar verdicts and settlements in complex medical and dental malpractice and personal injury litigation. He is a past president of the Greater Bridgeport Bar Association and appears regularly on Court TV. Website, www.meehanlaw.com