What must a California civil-trial lawyer do when a client's witness has testified or will testify falsely?
State Bar of California COPRAC Formal Opinion 2019-200: Suspected and Known Perjured Testimony
Short answer: The opinion concludes that mere suspicion of falsity does not preclude offering a witness's testimony; that an attorney with actual knowledge of perjury may not solicit or present the testimony, even at the client's insistence; and that when previously offered material testimony is later known to be perjured, the attorney must take reasonable remedial measures consistent with confidentiality, including remonstration and, where the relationship has deteriorated such that competent representation will not be possible without endorsing the perjury, seeking to withdraw under Rule 1.16.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion poses three progressing scenarios in a civil sexual-harassment case where a client's eyewitness corroborates the client at deposition. In Scenario 1 the attorney comes to suspect but does not know that the witness lied; in Scenario 2 the attorney learns before trial that the testimony was perjured and the client insists on using it; in Scenario 3 the attorney first learns of the perjury after the witness has already testified at trial and the client refuses to allow corrective action.
On Scenario 1, the opinion concludes that an attorney is entitled to resolve credibility doubts in the client's favor and may present testimony that the attorney suspects but does not actually know to be false. The committee anchors this in the duty of vigorous advocacy, citing People v. McKenzie (1983), People v. Bolton (2008), and Rule 3.3(a)(3) ("A lawyer shall not . . . offer evidence the lawyer knows to be false."). Per the opinion, "knows" is defined in Rule 1.0.1(f) as actual knowledge of the fact in question, though knowledge may be inferred from circumstances, and "knows" requires more than skepticism.
On Scenario 2, the opinion concludes that once the attorney has actual knowledge that the testimony is willfully false and material, Rule 3.3(a)(3) and Business and Professions Code sections 6068(b) and (d), 6106, and 6128 bar the attorney from soliciting or presenting it, and the attorney may refuse to follow the client's instruction to do so. The committee anchors the attorney's authority to refuse to call a particular witness in civil cases in Blanton v. Womancare (1985) ("one captain per ship"). Per the opinion, the attorney must remonstrate with the client; if remonstration fails the attorney may seek permissive withdrawal under Rule 1.16(b), and in some cases mandatory withdrawal under Rule 1.16(a) may be triggered. Withdrawal motions must comply with Rule 1.16(d) (reasonable steps to avoid foreseeable prejudice) and the duty of confidentiality, with the lawyer disclosing to the court only as much as reasonably necessary, per Cal. State Bar Formal Op. 2015-192.
On Scenario 3, the opinion concludes that Rule 3.3(a)(3) triggers a duty to take "reasonable remedial measures" because material false testimony has been offered, but that in California those measures are constrained by the duty of confidentiality. The committee identifies the central California-versus-ABA distinction: ABA Model Rule 3.3(a)(3) authorizes disclosure of the perjury to the tribunal where necessary, but in California the duty of candor does not override the duty of confidentiality found in Business and Professions Code section 6068(e) and Rule 1.6. Per the opinion, the attorney must remonstrate with the client, may attempt to strike or correct the testimony if the client consents, and must refrain from referring to or relying on the perjured testimony for the remainder of the trial, citing Cal. State Bar Formal Op. 1983-74. If the deteriorating attorney-client relationship makes continued competent and diligent representation impossible without implied endorsement of the perjury, Rule 1.16(a) may make withdrawal mandatory; the motion to withdraw cannot disclose the specific reasons, per Rule 1.16, Comment [4] and Cal. State Bar Formal Op. 2015-192.
In practice
Under this opinion, conduct that is consistent with California's Rules of Professional Conduct as they stood at the time of the opinion in the perjury-civil-trial setting is conduct in which (i) the attorney offers testimony the attorney merely suspects to be false only after resolving doubts in the client's favor; (ii) the attorney refuses to solicit or present testimony actually known to be perjured, regardless of the client's instruction; (iii) the attorney remonstrates with the client to seek corrective action when previously offered material testimony is later known to be perjured; (iv) the attorney does not refer to or rely on perjured testimony in the remainder of the trial; and (v) where the attorney-client relationship has deteriorated so that competent, diligent representation will not continue without implied endorsement of the perjury, the attorney seeks permissive or, where the rule's standard is met, mandatory withdrawal under Rule 1.16, disclosing to the court only as much as necessary to support the motion and otherwise preserving the duty of confidentiality.
Common questions
Q: May a California lawyer use a witness's testimony the lawyer suspects but does not know is false?
A: Per the opinion, yes. The committee holds that mere skepticism is not "actual knowledge" under Rule 3.3(a)(3) and Rule 1.0.1(f), and an attorney is entitled to resolve doubts about credibility in the client's favor. The attorney may present the testimony and forcefully argue the client's case based on it.
Q: If the client insists the lawyer use known-perjured testimony at the upcoming trial, what must the lawyer do?
A: Per the opinion, the attorney must refuse. Rule 3.3(a)(3), Business and Professions Code sections 6068(b) and (d), 6106, and 6128, and the case law from In re Branch (1969) bar presentation of testimony known to be false. The committee holds that the attorney has independent authority in civil cases under Blanton v. Womancare to refuse to call the witness, and that the client cannot override that refusal.
Q: After remonstration, what are the lawyer's withdrawal options?
A: Per the opinion, permissive withdrawal under Rule 1.16(b) is available where the client seeks a course the lawyer reasonably believes was a crime or fraud, insists on criminal or fraudulent conduct, or makes the representation unreasonably difficult or likely to result in a rule violation. The committee notes that mandatory withdrawal under Rule 1.16(a) may be triggered where continued representation "will" result in a rule violation, drawing the line between "will" (mandatory) and "likely" (permissive). Withdrawal motions must comply with Rule 1.16(d).
Q: Can the California lawyer disclose the perjury to the court over the client's objection?
A: Per the opinion, no. The committee identifies the central distinction between California and the ABA Model Rules: ABA Model Rule 3.3(a)(3) authorizes disclosure as a last-resort remedial measure, but Rule 1.6 and Business and Professions Code section 6068(e)(1) prohibit revealing client secrets, and in California "the duty of candor does not override the duty of confidentiality." The committee notes that an attorney's knowledge of the witness's perjury is a "client secret" under Cal. State Bar Formal Op. 2016-195.
Q: After remedial measures, may the lawyer continue with the trial?
A: Per the opinion, the attorney must not refer to or rely upon the perjured testimony for the remainder of the trial, drawing on Cal. State Bar Formal Op. 1983-74 ("conduct the balance of the trial as if such testimony had been stricken from the record"). The committee holds that whether continued representation is possible depends on whether the perjury will continue to materially influence the outcome and benefit the client such that the attorney's continued role amounts to implied endorsement of the perjury.
Q: How does the analysis change in a criminal case?
A: Per the opinion, the committee distinguishes the civil setting addressed in the hypothetical from criminal cases where the defendant-client has a Sixth Amendment right to testify, citing Rock v. Arkansas (1987) and Rule 3.3, Comment [4]. In criminal trials, a defense lawyer may offer the defendant's testimony in narrative form after attempts to dissuade and seeking permission to withdraw under Rule 1.16. The committee notes the People v. Johnson (1998) extension of the narrative approach to third-party witnesses.
Background and rules framework
The opinion interprets California Rules 1.0.1 (definitions), 1.6 (confidentiality), 1.8.2 (use of client information to client disadvantage), 1.16 (declining or terminating representation), 3.3 (candor to the tribunal), and 8.4 (misconduct), together with Business and Professions Code sections 6068, 6106, and 6128. The committee identifies the central tension as the collision between the duty of candor to the tribunal under Rule 3.3 and the duty of confidentiality under Business and Professions Code section 6068(e) and Rule 1.6, and notes that California resolves the collision in favor of confidentiality, unlike the ABA Model Rules.
Citations and references
Rules of Professional Conduct:
- California Rules 1.0.1 (including 1.0.1(f) and 1.0.1(j)), 1.6, 1.8.2, 1.16 (including 1.16(a), 1.16(b)(2)-(4), 1.16(b)(9), and 1.16(d)), 3.3 (including 3.3(a)(3) and Comments [4], [5], and [8]), 8.4 (including 8.4(c))
- ABA Model Rule 3.3(a)(3) (referenced for comparison)
Statutes:
- California Business and Professions Code sections 6068 (including 6068(b), 6068(d), and 6068(e)(1)), 6106, and 6128 (including 6128(a))
- California Penal Code sections 118 (perjury) and 127 (subornation of perjury)
Cases:
- People v. McKenzie, 34 Cal.3d 616 (Cal. 1983), duty of vigorous representation
- People v. Crawford, 259 Cal.App.2d 874 (Cal. Ct. App. 1968), attorney represents client to the hilt
- McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988), resolving doubts in client's favor
- Cassim v. Allstate Ins. Co., 33 Cal.4th 780 (Cal. 2004), counsel's latitude to argue
- People v. Bolton, 166 Cal.App.4th 343 (Cal. Ct. App. 2008), suspected versus known falsity
- People v. Riel, 22 Cal.4th 1153 (Cal. 2000), no ethical problem absent undisclosed factual knowledge of falsity
- Blanton v. Womancare, 38 Cal.3d 396 (Cal. 1985), attorney's tactical authority in civil cases
- Nahhas v. Pacific Greyhound Lines, 192 Cal.App.2d 145 (Cal. Ct. App. 1961), refusing to call a witness
- In re Branch, 70 Cal.2d 200 (Cal. 1969), criminal and disciplinary consequences of presenting perjured testimony
- In re Horton, 54 Cal.3d 82 (Cal. 1991), attorney's general procedural authority
- Gdowski v. Gdowski, 175 Cal.App.4th 128 (Cal. Ct. App. 2009), trial-strategy authority
- Maddox v. City of Costa Mesa, 193 Cal.App.4th 1098 (Cal. Ct. App. 2011), substantive rights within client's authority
- People v. Johnson, 62 Cal.App.4th 608 (Cal. Ct. App. 1998), narrative testimony approach
- People v. Gadson, 19 Cal.App.4th 1700 (Cal. Ct. App. 1993), narrative approach for third-party witnesses
- People v. Brown, 203 Cal.App.3d 1335 (Cal. Ct. App. 1988), withdrawal without disclosing reasons
- Rock v. Arkansas, 483 U.S. 44 (1987), criminal defendant's Sixth Amendment right to testify
- In the Matter of Temkin, 1 Cal. State Bar Ct. Rptr. 321 (Cal. State Bar Ct. Rev. Dept. 1991), continuing to assert authenticity after learning of falsity
- Olguin v. State Bar, 28 Cal.3d 195 (Cal. 1980), continuing assertion after learning of falsity
- People v. Rubio, 121 Cal.App.4th 927 (Cal. Ct. App. 2004), perjury materiality
Other opinions cited:
- Cal. State Bar Formal Op. 1983-74: prior California guidance on perjury and remedial measures
- Cal. State Bar Formal Op. 2012-183: confidentiality after termination of representation
- Cal. State Bar Formal Op. 2015-192: disclosure only as necessary on withdrawal
- Cal. State Bar Formal Op. 2016-195: scope of client secrets
- Orange County Bar Association Formal Op. 2003-01: actual-knowledge standard in criminal cases
- Nguyen v. Knowles (E.D. Cal. 2010): "firm factual basis" for belief in client perjury
See also
- CA COPRAC Op. 2020-201: Departing Lawyer Duties
- CA COPRAC Op. 2020-203: Data Breaches and Rule 1.6 Confidentiality
- CA COPRAC Op. 2021-207: Diminished-Capacity Client
- No ABA sibling opinion on candor versus confidentiality yet indexed.
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/2025-11/CAL-2019-200-%5B14-0004%5D_0.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION INTERIM NO. 2019-200
ISSUE: Issue #1: What are the attorney's duties when the attorney 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
attorney's client?
Issue #2: What are the attorney's duties when the attorney knows, rather
than merely suspects, the same witness has committed perjury and yet
the client instructs the attorney 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 attorney first
learns of the perjury after the witness has testified at trial. Thus, what are
the attorney's duties, if any, after attorney has gained knowledge of the
witness's perjury at trial, the client nonetheless has instructed the attorney
to continue to use the perjured testimony in the remainder of the trial?
DIGEST: Because an attorney must vigorously represent a client, the attorney may
offer testimony of questionable credibility; however, because of the duty
of candor to the court, an attorney must not present or use perjured
testimony known by the attorney to be false even if the client has
instructed the attorney to do so. If the attorney offered to the tribunal
testimony that is material to the proceeding and later learns that the
testimony was false, the attorney must take reasonable remedial
measures to correct the record without violating the duty of
confidentiality. If such measures fail, the attorney may have a duty to
seek to withdraw from the representation.
AUTHORITIES
INTERPRETED: Rules 1.6, 1.16, and 3.3 of the Rules of Professional Conduct of the
State Bar of California.
Business and Professions Code sections 6068, 6106, and 6128.
Rules of Professional Conduct citations in this opinion are to the rules that became effective
November 1, 2018. Each cited rule existed, prior to November 1, 2018, in similar or somewhat similar
form, as follows: rule 1.6 previously as rule 3-100; rule 1.16 as rule 3-700; and rule 3.3 as rule 5-200.
Unless otherwise indicated, all references to "rules" in this opinion will be to the Rules of Professional
Conduct of the State Bar of California.
STATEMENT OF FACTS
Attorney (Attorney) represents plaintiff (Client) in a sexual harassment case against Client's
immediate supervisor (Supervisor) and employer. Before the lawsuit is filed, Attorney
interviews Client's co-worker (Witness), who corroborates, as an eyewitness, evidence of
Supervisor's sexual harassment directly supporting Client's key claims. The eyewitness
testimony is crucial; without it, Client may well lose the case.
Attorney files the lawsuit and during discovery discloses Witness as a percipient witness
supporting Client's allegations. The defense deposes Witness, who testifies, under oath,
consistent with the statements he earlier made to Attorney. When the case is set for trial,
Attorney lists Witness as a trial witness.
Scenario #1: Shortly before trial, Attorney reviews Witness's deposition testimony, and, based
on newly obtained and seemingly credible testimony from other sources, begins to have doubts
about the truthfulness of Witness's eyewitness testimony. Attorney forms the opinion, but
does not know, that Witness may have lied about being an eyewitness and may have come
forward only as a favor to help Client as a fellow employee and friend.
Scenario #2: Shortly before trial, Client tells Attorney that Witness recently admitted to
fabricating Witness's claim to having been an eyewitness to the sexual harassment. Attorney
promptly contacts Witness, who admits to having given the false deposition testimony.
Attorney informs Client, who nonetheless instructs Attorney to use Witness's false testimony at
trial.
Scenario #3: Unlike Scenario #2, Attorney does not know before trial that Witness's deposition
testimony was perjured. At trial, still unaware of the perjury, Attorney incorporates Witness's
false eyewitness testimony into the case. Witness testifies on Client's behalf, claiming to be an
eyewitness to the sexual harassment. Attorney cross-examines Supervisor, seeking to impeach
Supervisor with Witness's eyewitness account. Before trial concludes, however, Client tells
Attorney that Witness has admitted to lying in Witness's trial testimony. Attorney promptly
contacts Witness, who admits that Witness's testimony claiming to be an eyewitness to the
harassment was willfully false. Client instructs Attorney not to reveal the perjury to the court
and insists that Attorney continue to use the perjured testimony in the remainder of the trial.
DISCUSSION
These scenarios address progressing situations in which an attorney must balance advocacy
with the duties of candor to the court and client confidentiality.
Scenario #1
This scenario poses the question regarding what an attorney is ethically obligated to do if the
attorney comes to suspect, but does not know, the client's witness may have testified falsely on
a material matter at deposition. The deposition testimony has not yet been presented to the
court.
In evaluating their duties in this context, attorneys must keep in mind their duty to vigorously
represent their clients within the bounds of the law. In so doing they are entitled to resolve all
doubts about the credibility of evidence in their client's favor. People v. McKenzie (1983) 34
Cal.3d 616, 631 [194 Cal.Rptr. 462]; People v. Crawford (1968) 259 Cal.App.2d 874 [66 Cal.Rptr.
527] ("attorney should represent his client to the hilt"); McCoy v. Court of Appeals of Wisconsin
(1988) 486 U.S. 429, 444 [108 S.Ct. 1895] ("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.").
In this scenario, Attorney lacks actual knowledge that the testimony was untruthful. Rather,
Attorney is merely skeptical about Witness's veracity. A mere suspicion that the testimony
could be false will not preclude Attorney from using it. "Although attorneys may not present
evidence they know to be false or assist in perpetrating known frauds on the court, they may
ethically present evidence that they suspect, but do not personally know, is false . . . . Presenting
incredible evidence may raise difficult tactical decisions – if counsel finds evidence incredible,
the fact finder may also – but, as long as counsel has no specific undisclosed factual knowledge
of its falsity, it does not raise an ethical problem." (People v. Bolton (2008) 166 Cal.App.4th 343,
357 [82 Cal.Rptr.3d 671], citing People v. Riel (2000) 22 Cal.4th 1153, 1217 [96 Cal.Rptr.2d 1]).
See also, rule 3.3(a)(3) ("A lawyer shall not: . . . offer evidence the lawyer knows to be false.").
Thus, Attorney's mere skepticism over the Witness's truthfulness, standing alone, does not
ethically preclude the use of the testimony. Attorney may present this evidence and, consistent
with the duty of vigorous advocacy, forcefully argue Client's cause based on it. However, under
rule 3.3(a)(3) "a lawyer may refuse to offer evidence . . . the lawyer reasonably believes is
false." (Emphasis added).
Scenario #2
In this scenario, Attorney's state of mind as to Witness's veracity has advanced from skepticism
to actual knowledge of falsity. The testimony is perjured, it is willfully false and material,
because, as stated above, "The eyewitness testimony is crucial; without it, Client may well lose
the case." Nonetheless, Client has instructed Attorney to use the perjured testimony at trial.
This scenario concerns an attorney's duty of candor to the court, found in rule 3.3 ("Candor
Toward the Tribunal") and Business and Professions Code section 6068. The former provides in
part, "A lawyer shall not: . . . offer evidence the lawyer knows to be false." Likewise, 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."
Because Attorney knows the testimony is false, rule 3.3 and section 6068 would bar its
presentation as would Business and Professions Code section 6106, which proscribes "the
commission of any act involving, moral turpitude, dishonesty or corruption." In addition,
Business and Professions Code section 6128 provides: "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 in case law as well
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 [74 Cal.Rptr. 238].
Therefore, Attorney's ethical mandate is clear. Attorney, knowing of the perjury, may not solicit
or otherwise seek to introduce the testimony in question.
In this civil case setting, Attorney also has the authority to refuse to follow Client's instruction
to submit the perjured testimony. The Supreme Court addressed the question of an
attorney's authority to refuse to call a particular witness in Blanton v. Womancare (1985) 38
Cal.3d 396 [212 Cal.Rptr. 151]: "Considerations of procedural efficiency require . . . that in the
course of a trial there be but one captain per ship. An attorney must be able to make such
tactical decisions whether to call a particular witness, and the court and opposing counsel must
be able to rely upon the decisions he makes, even when the client voices opposition in open
court." (Id. at p. 404 [citations omitted]). Thus, an attorney may refuse to call a witness even
though the client requests that the witness testify. Nahhas v. Pacific Greyhound Lines (1961)
192 Cal.App.2d 145, 146 [13 Cal.Rptr. 299].
Here, Attorney must refuse to follow Client's instruction to offer the false testimony at the
upcoming trial. Attorney must remonstrate with Client, explaining to Client the illegality of
perjury, the potential consequences to Client of sponsoring perjured testimony and
Attorney's ethical duty to refuse to be party to any such offering. Rule 3.3, Comment [4] ("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, despite remonstration, Client persists with the instruction, Attorney must again refuse to
carry out the instruction. Attorney may continue in the representation but, consistent with
Attorney's authority to control witness presentation in civil cases, may not offer Witness's
testimony at the upcoming trial.
Another option for Attorney, rather than continuing to trial, is to request that Client allow
Attorney to withdraw as counsel under the rule of "permissive withdrawal" in rule 1.16(b).
Attorney should also consider whether the disagreement with Client has caused a deterioration
in their relationship so significant that Attorney "can no longer competently and diligently
represent the client" in which case Attorney may have a mandatory duty to seek to withdraw.
Rule 3.3, Comment [8]. If Client refuses, then Attorney may move the court to withdraw as
counsel without disclosing the perjured testimony. People v. Brown (1988) 203 Cal.App.3d
1335, 1339-1340, fn. 1 [250 Cal.Rptr. 762]. 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). However, Attorney may
only withdraw after taking reasonable steps to avoid reasonably foreseeable prejudice to
Client's rights. Rule 1.16(d).
Scenario #3
In this scenario, Attorney first learns of the perjury after Witness has testified at trial. Witness
has been presented to the trier of fact as possessing crucial information. Client, nonetheless,
has instructed Attorney not to take any corrective action and insists that Attorney continue to
use the perjured testimony through the remainder of the trial, including closing argument.
Attorney's duty of candor to the court is immediately implicated.
Attorney's statutory duties of candor are found in Business and Professions Code sections
6068(b) and (d), 6106, and 6128(a) discussed in Scenario #2. Attorney's ethical duty of candor
after learning that previously presented evidence is false is found in rule 3.3(a)(3), which states
that "If . . . a witness called by the lawyer, has offered material evidence, and the lawyer comes
to know of its falsity the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal, unless disclosure is prohibited by Business and Professions
Code section 6068, subdivision (e) and rule 1.6." Because the witness's testimony is material
and known to be false, the duty to take such measures has arisen.
The problem here is the collision between the duty of candor and the duty of confidentiality.
This is because Attorney's knowledge of Witness's perjury constitutes a "client secret."
"'Client secrets' covers a broader category of information than do confidential attorney-client
communications; confidential communications are merely a subset of what are considered
client secrets. Indeed, 'client secrets' include not only confidential attorney-client
communications, but also information about the client that may not have been obtained
through a confidential communication." Cal. State Bar Formal Opn. No. 2016-195, p. 2-3. Thus,
"'Client secrets means any information obtained by the lawyer during the professional
relationship, or relating to the representation, which the client has requested to be inviolate or
the disclosure of which might be embarrassing or detrimental to the client.'" Id. at p. 2. Further,
rule 1.6(a) states, "A lawyer shall not reveal information protected from disclosure by Business
and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent. . . ."
And Business and Professions Code section 6068, subdivision (e)(1) provides that attorneys
must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the
secrets, of his or her client." This prohibition is reinforced by rule 1.8.2 which provides: "A
lawyer shall not use a client's information . . . protected by section 6068, subdivision (e)(1) to
the disadvantage of the client unless the client gives informed consent, except as permitted by
these rules or the State Bar Act."
Here, all elements of a "client secret" are present. Revelation of the fact – a key witness
proffered by Client has committed perjury on a crucial issue – is likely to be embarrassing and
detrimental to Client. Attorney acquired knowledge of the perjury from Client, and confirmed
by Witness, all of which occurred within the course of the representation. Further, Client has
instructed Attorney not to take corrective action. Rules 1.6 and 1.8.2, therefore, prohibit
Attorney from disclosing that the Witness's testimony was false.
The Rules of Professional Conduct encourage the attorney, where there are perjury concerns,
to remonstrate with the client, first and foremost, rather than seeking to withdraw. See rule 3.3
in its entirety, including Comments. The policy underpinnings for the "remonstration first"
preference must stem from the recognition that withdrawing from the representation may not
cure the problem that the perjury may remain in the case.
Thus, in this scenario, Attorney must employ "reasonable remedial measures" available under
the Rules of Professional Conduct and the State Bar Act "which a reasonable attorney would
consider appropriate under the circumstances to comply with the lawyer's duty of candor to
the tribunal." Rule 3.3, Comment [5]. Such remonstration measures "include explaining to the
client the lawyer's obligations under this rule and, where applicable, the reasons for the
lawyer's decision to seek permission from the tribunal to withdraw, and remonstrating further
with the client to take corrective action that would eliminate the need for the lawyer to
withdraw." Id. Corrective action would include striking or correcting Witness's false testimony
by stipulation or motion. Cal. State Bar Formal Opn. No. 1983-74. Or, Client could testify to
Witness's admission.
Here, however, Attorney's attempts at remonstrating with Client have failed. Client will not
authorize Attorney to move to strike the testimony. Further, Client instructs Attorney to
continue to use the perjured testimony.
Attorney may analyze whether it would be appropriate to strike the testimony over Client's
objection under the theory, as discussed in Scenario #2, that Attorney, as "captain of the ship,"
has the ultimate control over evidentiary decisions in civil cases. This course may be perilous
because it is questionable whether the metaphorical "ship's captain" has the authority, even in
a civil case, to take action, against the client's instructions, that would sink the ship. Such would
be the concern here because, as the hypothetical states, "the eyewitness testimony is crucial;
without it, Client may well lose the case." In addition, depending on the circumstances, a
motion to strike the testimony could effectively result in the disclosure of information
protected by the duty of confidentiality.
Because remonstration has failed, Attorney must consider as well whether it is appropriate, or
even required, to seek to withdraw as counsel. Under rule 1.16(b), which authorizes permissive
withdrawal, Attorney has valid grounds to seek to withdraw.
However, whether seeking to withdraw has become mandatory under rule 1.16(a) requires a
deeper analysis. Rule 3.3, Comment [8] provides: "A lawyer's compliance with the duty of
candor imposed by this rule does not require that the lawyer withdraw from the
representation." However, the Comment goes on to state, "The lawyer, may, however, be
required by rule 1.16 to seek permission of the tribunal to withdraw if the lawyer's compliance
with this rule results in a deterioration of the lawyer-client relationship such that the lawyer can
no longer competently and diligently represent the client, or where continued employment will
result in a violation of these rules."
The facts in this scenario strongly suggest a deteriorating lawyer-client relationship. This is not a
disagreement over a minor strategy decision. Client disagrees with Attorney's remonstration to
Client on matters fundamental to our judicial system and Attorney's ethical duties. Client insists
on proceeding despite knowing the case relies on perjured testimony which will not be
corrected. Client instructs Attorney to continue to use the false testimony.
But Comment [8] to rule 3.3 does not make withdrawal mandatory merely because of a
deteriorating client relationship. Standing alone a substantial disagreement with a client does
not require an attorney to seek to withdraw. Rule 1.16(b) (withdrawal is permissive when client
"renders it unreasonably difficult for the lawyer to carry out the representation effectively").
Instead, Comment [8] mandates that the deterioration also must adversely affect Attorney's
ability to competently and diligently represent the Client or will cause the continued
employment to violate the Rules.
Here, Attorney still has the option to take remedial action by refusing to refer to or rely upon
the perjured testimony in all remaining aspects of the trial. As discussed in Scenario #2 above,
Attorney can and must do so even despite Client's instructions to the contrary. Under these
facts, Attorney following the "never mention or use it again" approach may continue to
competently and diligently represent Client.
Never referring to or relying upon the testimony again, however, will be insufficient according
to Comment [8] if the continued employment will cause Attorney to violate the Rules. Note
well, the use of "will," which derives from the mandatory withdrawal provision of rule 1.16(a):
"the lawyer knows or reasonably should know that the representation will result in a violation
of these rules or of the State Bar Act." On the other hand, under rule 1.16(b)(9) withdrawal is
permissive if continuation of the representation is only "likely" to result in a violation of the
rules or State Bar Act.
The difference between what "will" cause a rule violation (mandatory withdrawal) versus what
is "likely" to cause a rule violation (permissive withdrawal) is not always clear. In seeking to
trace this line, Attorney must consider whether Attorney's continued involvement in the case
could be construed to be Attorney's consent to or endorsement of the perjury. Here, although
Attorney used the perjured testimony in examination and cross-examination of witnesses,
Attorney did so without knowledge of the falsity and going forward will make no further
reference to it. Attorney will not be explicitly endorsing or consenting to the perjury in the
remaining aspects of the trial.
On the other hand, the perjured testimony is, as stated above, "crucial," and Client likely will
lose the trial without it. Attorney should evaluate whether the perjury will continue to
materially influence the outcome and benefit Client, despite that Attorney will make no further
explicit use of it. The central question for Attorney is whether the representation of Client may
continue through the rest of the trial without putting Attorney in the position of having
impliedly endorsed or consented to the perjury.
In this regard, Attorney should examine several questions, such as: Is Attorney able to
effectively argue and present other aspects of the case which are untainted by the perjury? For
example, did Witness provide other testimony not known to be perjured which is a benefit to
Client? How can Attorney vouch for any aspect of Witness's testimony knowing of the perjury?
Did other witnesses, including experts, rely upon the perjured testimony in some way and refer
to it favorably? To effectively represent Client must Attorney continue to vouch for those
witnesses in some way? Is the perjured testimony embedded in exhibits which have been
admitted into evidence? Did the court make, or will it make, rulings (for example, on motions in
limine, to dismiss or for nonsuit) relying upon the perjured testimony which may affect the
outcome?
The analysis of these and other factors may lead Attorney to conclude that, remaining on the
case, without mentioning or relying upon the perjured testimony again, nonetheless "will"
constitute implied consent to or endorsement of the perjury and "will" cause a rule violation.
See again the citations to rule 3.3, Business and Professions Code sections 6068(b) and (d),
6106, and 6128(a), and In re Branch discussed under Scenario #1 above. If an attorney of
reasonable prudence and competence would reach such a conclusion, then Attorney's
mandatory duty to seek to withdraw from the representation will have been triggered.
If the decision is to withdraw, Attorney should forewarn Client that withdrawal may negatively
impact Client's credibility. In seeking to withdraw, Attorney cannot disclose the specific reasons
due to the duty of confidentiality still owed to Client (Cal. State Bar Formal Opn. 2015-192; rule
1.16, Cmt. [4]) and shall not withdraw from employment until Attorney has "taken reasonable
steps to avoid reasonably foreseeable prejudice." Id. at 1.16(d).
If a withdrawal motion is unsuccessful then Attorney must not refer to or rely upon the
perjured testimony throughout the rest of the case. See Cal. State Bar Formal Opn. No. 1983-74
("[T]he attorney may not thereafter rely upon or refer to any of the perjured testimony. To do
so would constitute a willful misrepresentation by the attorney of matters that he/she knows to
be untrue, which could subject the attorney to discipline. The attorney must conduct the
balance of the trial as if such testimony had been stricken from the record.") (Citations
omitted.)
CONCLUSION
An attorney should be an assertive advocate and may ethically argue that evidence with
questionable credibility should be considered. Yet, an attorney may not use, and must refuse to
submit, evidence known to be false. When the attorney has actual knowledge during a trial that
a witness has committed perjury, the duty of candor to the tribunal requires the attorney to
take reasonable remedial measures consistent with the duty of confidentiality. Those measures
include remonstrating with the client to take corrective action. If the client refuses, the
attorney may be required to seek to withdraw from the representation.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of
the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of
California, its Board of Trustees, any persons or tribunals charged with regulatory
responsibilities, or any licensee of the State Bar.