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  Your main defense is that the plaintiff and the defendant rescinded their contract in writing.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 Rule?

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 so?

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?