Ethics, Integrity, and the Not-So-Truthful Client

You did it! Three years of stress. Three years of late nights hopped up on caffeine. Three years of interviews, internships, rejections, and successes.

For so long, you gave up many things to make it through the crucible known as law school. You passed the bar. You swore an oath to keep your client’s secrets and to the Constitution. You pledged to conduct yourself “at all times with dignity, courtesy, and integrity.” You decided to start your own practice where you engage in a mix of civil and criminal litigation. You think you are ready for your first client. But are you?

Civil Litigation

Imagine your first client in a personal injury case. During trial preparation, your client talks to you about the severity of the pain they felt after the car accident at issue. The client plans to testify about their “excruciating, unbearable, and persistent” pain. Your client admits, however, that this proposed testimony will all be untrue. In fact, the client concedes to you they didn’t feel much pain at all after the accident. 

In this scenario, your personal injury client has unequivocally admitted they are going to lie on the stand about the severity of their injuries. This scenario implicates Rule 3.3, which governs an attorney’s duty of candor to the court (“Candor Toward the Tribunal”) and Business and Professions Code section 6068.

Rule 3.3 provides in part: “A lawyer shall not: … offer evidence the lawyer knows to be false.” Similarly, Business and Professions Code sections 6068(b) and (d) provide: “It is the duty of an attorney … : (b) To maintain the respect due to the courts of justice and judicial officers … [and] (d) To employ … means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Further, Rule 3.4(d) states that “[a] lawyer shall not: … assist a witness to testify falsely.”

Moreover, Business and Professions Code section 6106, forbids “the commission of any act involving, moral turpitude, dishonesty or corruption.” In addition, there is even scarier language in Business and Professions Code section 6128, which states: “Every attorney is guilty of a misdemeanor who either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” It is well established that “[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution as well as severe disciplinary action.” (In re Branch (1969) 70 Cal.2d 200, 211.)

Here, you must refuse to be a part of this perjury. You must explain to your client the illegality and consequences of perjury. You must also inform your client about the ethical duties that forbid you from facilitating perjured testimony. Rule 3.3, Comment [4] states: “If a lawyer knows the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered and, if unsuccessful, must refuse to offer the false evidence.”

If this does not work, and your client insists on lying on the stand, you may seek to withdraw from the case based on Rule 1.16(b).  If your client refuses your request to withdraw, then you may move the court to allow a withdrawal without disclosing the attorney-client communications that warrant withdrawal. (People v. Brown (1988) 203 Cal.App.3d 1335, 1339-1340, fn. 1; see also, Cal. State Bar Formal Opn. No. 2015-192 (attorneys may disclose to the court only as much as reasonably necessary to demonstrate the need to withdraw and without violating the duty of confidentiality).)

The proper course of action is altogether different if you are merely skeptical about your client’s future testimony. If you lack concrete proof your client will lie on the stand, you must still vigorously represent your client within the bounds of the law. As a lawyer and advocate, you are entitled to resolve all doubts about the credibility of evidence in your client’s favor. (People v. McKenzie (1983) 34 Cal.3d 616, 631; McCoy v. Court of Appeals of Wisconsin (1988) 486 U.S. 429, 444 (“In searching for the strongest arguments available, the attorney must be zealous and must resolve all doubts and ambiguous legal questions in favor of his or her client.”).)

Criminal Litigation

Now, you are representing another client in a case of alleged driving under the influence of alcohol. During trial preparation, your client admits they will falsely testify they were not the driver of the vehicle, and that a friend was the driver. The client unequivocally admits they will lie.

In contrast to civil cases, criminal case clients retain ultimate control over whether they will testify because of the Fifth, Sixth, and Fourteenth Amendments of the U.S. Constitution. (Rock v. Arkansas (1987) 483 U.S. 44, 49-52.) Thus, the “criminal defendant has the right to take the stand even over the objections of his trial counsel.” (People v. Johnson (1998) 62 Cal.App.4th 608, 618.) Your options as a criminal defense attorney are narrowed by the fact that you know your client is about to commit perjury.

While your client can testify, you cannot ask them any questions. Otherwise, you would become a part of the lie. So how does it work?

At trial, you would announce that your client is going to testify. Then, you would sit down in awkward silence as your client testifies in a narrative format.

In other words, the client tells the story they want, and you can only sit by, watch and listen. Rule 3.3, Comment [4] provides that this narrative testimony is only permitted after “the [defense counsel] made reasonable efforts to dissuade the client from the unlawful course of conduct and the lawyer has sought permission from the court to withdraw as required by rule 1.16.”

When practicing law, your integrity is everything. It takes a lifetime to build, and only a moment to ruin. Always practice the law with this mantra in mind.