Questions on Client Perjury and Rule 3.3
1. As we have seen, the Model Rules generally require a
lawyer to protect client confidences when secrecy conflicts with the interests
of third parties. For this reason the Model Rules are often criticized for
overprotecting client confidences. But Rule 3.3 puts upon a lawyer duties
of honesty to the court that generally trump the duty of confidentiality.
As a result, Rule 3.3 has been criticized for underprotecting client confidences.
To get a feel for Rule 3.3, consider the following scenarios.
2. During your client’s sentencing hearing, it becomes
clear that neither the court nor the prosecutor are aware of your client’s
previous conviction on a similar offense, which your client told you about.
Under the Model Rules, must you correct the court’s mistake?
May you correct the court’s mistake? What if the court asks you, “He
has no prior convictions, right?” May you respond, “Not to my knowledge.”?
3. Your client is being sued for breach of contract.
Your main defense is that the plaintiff and the defendant rescinded their
contract in writing. You present as evidence the written recession,
which your client told you, and you believe, is genuine. It is in fact
an obvious forgery, as shown by the fact that both your client and the plaintiff’s
signature are in the same handwriting. That it is a forgery becomes
abundantly clear at trial. Have you violated Rule 3.3?
4. You are writing a brief in favor of a motion to dismiss
in state court. You discover that there are no cases in that state
on the issue, but in fact the supreme courts of five other states have decided
unanimously against your position. You write in your brief, “There
is no precedent on this issue.” Have you violated Rule 3.3? Any other
5. Your client is being sued for negligent driving.
You know from your investigation that your client did not signal when he
made the left hand turn that caused the accident. You stumble across
a witness who is convinced that your client did signal. May you present
the witness at trial? Let’s say instead that you are only pretty sure
that the witness is wrong. May you present the witness
at trial? May you refuse to present the witness at trial?
6. You discover that your client has falsely testified
as a witness in a case in which you are not involved. Must you inform
that court, even if you will reveal client confidences? May you do
7. You are defending a client in a case in which your client
and another defendant have been accused of fraud. A few days into the
trial and before your client has taken the stand, you enter into a “Mary
Carter” agreement with the plaintiff, that is, you secretly settle with the
plaintiff but continue as if you were a genuine defendant. Assume that
such agreements are legal (as they are in some states), are they nevertheless
contrary to Rule 3.3?
8. You are defending your client in a robbery case.
Your client is not going to take the stand. You know from your client that
the robbery occurred at 4:00 A.M. Amazingly, the victim, who has identified
your client, testifies that the robbery occurred at 2:00 A.M. You have an
alibi for your client up to 3:00 A.M. You present the alibi in your
client’s defense. Have you violated Rule 3.3?
9. Assuming that Crary had not assisted Mrs. Curtis in
coming up with her false testimony and that he was surprised by her perjury
when it happened. What was he supposed to do, remembering that he had
the right not to self-incriminate? Is there anyway he could stop the
perjury as it was occurring without incriminating himself? Would the case
have come out differently if Crary had let her testify that day but had withdrawn
or attempted to keep her from taking the stand again two days later?
10. Your client indicates that he is going to testify in
a civil case that he is 21 rather than 20 years old. The issue is likely
to come up in the routine questioning at the beginning of your questioning
of him or in the cross-examination. It is not relevant to your
client’s actual civil liability. He wants to say he is 21, because
a bartender at a bar he frequents will be in the audience. What is
your course of action? What should you do if your client doesn’t tell
you in advance of his intent to lie about his age, but you are instead surprised
by the lie during your questioning of him?
11. Assume that the surprise lie by your client in 10 above
was relevant to his civil liability. What then? What if you found
out about the lie after there was a judgment in your client’s favor?
Would it matter if the judgment was still appealable? If it was still
subject to a motion for relief from the judgment (which is one year under
Fed. R. Civ. P. 60)?
12. Should lawyers let their client’s know about their
duties not to admit perjured testimony at the beginning of the representation?
13. Your client, who is a criminal defendant in a murder
case, is rather naive and indicates that he is guilty. He then asks
you what type of testimony he should come up with. You say that he cannot
testify falsely at trial. He insists that he will. Must you withdraw?
Assume that you do withdraw. The client, a little wiser now, does not
tell his second lawyer the truth. He gives perjured testimony at trial.
Can you do anything about this?
13. What if your criminal defendant client says he is going
to commit perjury on the eve of the trial. What then?
14. What’s wrong with the “narrative approach” to client
perjury? Would it work in a bench trial?
15. Why shouldn’t a criminal defendant have the right to
commit perjury in his own defense?