By David Majchrzak and Edward McIntyre
State Bar of California Standing Committee on Professional Responsibility and Conduct Opinion No. COPRAC 2019-200
Issues:
Issue #1: What are a lawyer’s duties when the lawyer suspects, but does not know, a client’s witness who is expected to testify at a civil trial has testified falsely at deposition in the case, albeit favorably, for the lawyer’s client?
Issue #2: What are a lawyer’s duties when the lawyer knows, rather than merely suspects, the same witness has committed perjury, but the client instructs the lawyer to use the witness’s known false testimony at the upcoming civil trial?
Issue #3: The facts are the same as Issue #2, except the lawyer first learns of the perjury after the witness has testified at trial. Thus, what are the lawyer’s duties, if any, after lawyer has gained knowledge of the witness’s perjury at trial, the client nonetheless has instructed the lawyer to continue to use the perjured testimony in the remainder of the trial?
Analysis: Because a lawyer must vigorously represent a client, the lawyer may offer testimony of questionable credibility. But, because of the duty of candor to the court, a lawyer may not present or use testimony known by the lawyer to be false even if the client has instructed the lawyer to do so.
If the lawyer offered testimony that is material to the proceeding and later learns that the testimony was false, then the lawyer must take reasonable remedial measures to correct the record without violating the duty of confidentiality. If such measures fail or are impossible because of duties owed to the client, the lawyer may need to withdraw from the representation.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.