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One of the most difficult professional responsibility problems confronting an attorney is dealing with client perjury and fraud. This problem can arise in both counseling and litigation situations and in both criminal and civil cases.
The are many situations in which client perjury or fraud can arise. Consider the following examples: what does the attorney do when confronted with a client who intends to commit perjury? Who the attorney believes will commit perjury or fabricate evidence if given particular information about available defenses, or who reveals that he or she has committed perjury at a prior proceeding? While the incidence of client (or witness) perjury or fraud is hard to ascertain, the issues involved put the competing values of confidentiality and zeal in focus. The next section will address the issues in this area and attempts at their resolution. As you read this material, think about the values at stake. Are the responses clear? Are they correct? What counter-arguments should be made? Are the issues the same in the criminal and civil context? In litigation and non-litigation situations? If not, what differences should there be in required or permitted responses?
Read Model Rule 3.3 and 1.2(d).
Prior to the Model Rules, the prevailing view was that an attorney could not participate in the presentation of false evidence but was generally not to breach client confidences in order to prevent it. Thus, where an attorney discovered that a client intended to commit perjury, he or she was required to remonstrate with the client in an attempt to persuade the client to testify truthfully. If that effort failed, the attorney was to attempt to withdraw. Only if all else failed did some jurisdictions allow disclosure to the court. In some cases, particularly those involving criminal defendants, a middle ground was suggested: allowing the client to testify in a free narrative, without questions from counsel, and prohibiting counsel from arguing the false testimony in summation. These proposed solutions -- withdrawal and free narrative -- removed the attorney's involvement in the perjury but did little to effectively solve the underlying problem. These attempted solutions likewise reflected an ambivalence in the prioritization of competing values: candor to the tribunal and loyalty (confidentiality) to the client.
A similar inability to reconcile these competing values was reflected in the solution to the problem of past perjury or fraud. In ABA Formal Opinion 287 (1953), the Committee held that an attorney who discovered that a client had perpetrated a fraud during the attorney's representation of the client should remonstrate with the client and if unsuccessful, should sever the relationship but not disclose. When the Code was adopted, D.R. 7-102(A)(4) and (B)(1) appeared to override Opinion 287 and mandate disclosure, but an amendment to 7-102(B)(1), adopted by the ABA and many jurisdictions, excepted situations in which the attorney knew of the perjury or fraud by means of a "privileged communication." When ABA Formal Opinion 341 (1975) interpreted "privileged communication" to include both confidences and secrets, the disclosure obligation was effectively negated. Many jurisdictions returned to the mandatory withdrawal coupled with non-disclosure required by Opinion 287. Arguably, in this context, loyalty won out over candor.
The adoption of the Model Rules altered this situation dramatically, however, as the following materials indicate.
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