What must a criminal defense lawyer do when the client insists on giving false testimony?

Plain-English summary

Opinion 234 (issued March 8, 1993) answered a defense lawyer's questions about his duties where his client, pursuing a mistaken-identity defense, wanted to give false testimony. The client had been incarcerated pretrial; on the eve of trial he revealed he had switched the clothing he wore at arrest and confirmed he intended to testify falsely. Counsel tried to dissuade him, without success. Because D.C. Rule 3.3 differs from the rule in most jurisdictions, the committee answered by full opinion, addressing three questions: whether counsel should have moved to withdraw, what counsel could do to help the client testify, and what counsel could say in closing argument.

The committee traced D.C. Rule 3.3 to the "narrative approach": where counsel cannot dissuade the client from testifying falsely and cannot withdraw without seriously harming the client, counsel may put the client on the stand to testify in a narrative fashion, but may not examine the client so as to elicit testimony counsel knows to be false and may not argue the probative value of that testimony in closing. The committee recounted that the D.C. Court of Appeals adopted this approach, rejecting both the ABA's disclosure approach and the "full advocacy" approach.

Applying the rule, the committee concluded the facts were close but sufficient to discharge counsel from attempting to withdraw: trial was only days away, the client was incarcerated and unable to make bail, and Comment [8] to Rule 3.3 contemplates that counsel need not move to withdraw on the eve of trial. On preparing the testimony, the committee concluded counsel could call the client to give narrative testimony on the false points and could conduct normal question-and-answer examination on subjects where the client would testify truthfully, but that Rules 3.3(a)(2) and 1.2(e) prohibited helping the client prepare or frame the false testimony, as the committee had held under the prior Code in Opinion No. 79. On closing argument, the committee concluded counsel could not argue the false testimony to the jury but could argue the weight of the non-perjurious testimony and that the government had not met its burden of proof; counsel could argue the client's credibility only if the client had given some truthful, relevant evidence.

Currency note

This opinion was issued in 1993, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Did a D.C. defense lawyer have to withdraw when the client insisted on lying on the stand?

A: Not always. The committee concluded counsel must first try to dissuade the client and then seek to withdraw, but where the incarcerated client faced trial within days, Comment [8] to Rule 3.3 meant counsel was not required to move to withdraw on the eve of trial.

Q: If counsel stayed in the case, how could the false testimony be presented?

A: Only in narrative form. The committee concluded counsel could put the client on the stand to testify in a narrative fashion on the false points, but could not examine the client so as to elicit testimony counsel knew to be false.

Q: Could the lawyer help the client prepare the false statement?

A: No. The committee concluded Rules 3.3(a)(2) and 1.2(e) barred counsel from assisting the client in preparing or framing testimony counsel knew to be false, consistent with the earlier Opinion No. 79.

Q: What could counsel argue in closing?

A: The committee concluded counsel could argue the weight of the truthful testimony and that the government had not proved guilt beyond a reasonable doubt, but could not argue the false testimony, and could vouch for the client's credibility only if the client had given some truthful, relevant evidence.

Background and rules framework

The opinion interpreted D.C. Rule 3.3 (candor toward the tribunal), which in the District codifies the "narrative approach" to a criminal defendant's false testimony and differs from the corresponding rule in most jurisdictions. Rule 3.3(b) sets out the dissuade-then-withdraw sequence and the narrative-testimony limits; Rules 3.3(a)(2) and 1.2(e) bar a lawyer from counseling or assisting a client in criminal or fraudulent conduct; and Rule 1.6 governs the confidences that a withdrawal motion might expose. The committee grounded its analysis in the drafting history of the rule as adopted by the D.C. Court of Appeals.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 3.3 / Model Rule 3.3 (candor toward the tribunal; D.C. narrative approach to client perjury)
• D.C. RPC 1.2(e) / Model Rule 1.2 (a lawyer shall not assist a client in criminal or fraudulent conduct)
• D.C. RPC 1.6 / Model Rule 1.6 (confidentiality)

Cases:

• United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (3d Cir. 1977), requiring a "firm factual basis" for counsel's knowledge of intended perjury
• Shockley v. State, 565 A.2d 1373 (Del. 1989), requiring knowledge "beyond a reasonable doubt" that the client will commit perjury
• People v. Lowery, 366 N.E.2d 155 (Ill. App. 1977), holding a defendant was not prejudiced by narrative testimony framed by preliminary and concluding questions

Other opinions cited:

• ABA Informal Op. 1314 (1975): the evolution of the ABA's approach to client perjury
• D.C. Opinion No. 79 (1979): a lawyer may not prepare or assist in preparing testimony the lawyer knows is false

See also

• ABA Formal Op. 93-376: Client Lies in Discovery
• DC Ethics Op. 320: Jury Nullification Arguments by Defense Counsel
• DC Ethics Op. 392: Candor to the Tribunal and Confidentiality

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-234