What must a criminal defense lawyer do when the client insists on committing perjury?

Plain-English summary

A lawyer asked how to proceed where a criminal client has repeatedly stated an intent to commit perjury at an upcoming trial and, despite the lawyer's warnings, insists on testifying falsely. The opinion is expressly limited to the situation where the lawyer definitely knows the client intends to commit perjury, not the more common case where the lawyer only suspects it.

The committee works through several rules. Rule 4-1.2(d) bars assisting conduct the lawyer knows is criminal or fraudulent, and the opinion notes that, although interpreting statutes is beyond an ethics opinion, it appears to be a crime under Florida Statutes sections 837.02 and 777.011 for a lawyer to permit or assist false testimony. Rule 4-1.6(b)(1) requires a lawyer to reveal information necessary to prevent a client from committing a crime, including perjury. Rule 4-3.3 (candor toward the tribunal) bars knowingly permitting a witness, including a criminal defendant, to offer testimony the lawyer knows to be false, and its duties continue beyond the proceeding and apply even when compliance requires disclosing information otherwise protected by Rule 4-1.6. Following the comment to Rule 4-3.3, the opinion holds the lawyer's first duty is to persuade the client to testify truthfully, then to threaten disclosure, and finally to disclose the client's intent to lie to the judge along with information sufficient to prevent the perjury.

The opinion concludes that withdrawal does not by itself satisfy the lawyer's obligation, because withdrawal alone does not prevent the client from committing perjury; the lawyer must disclose the client's intention to the court. Timing may vary with the facts and the disclosure may, in some cases, be made ex parte in camera, with the method ultimately subject to the court's discretion. Because the disclosure creates a conflict between the lawyer's duty and the client's interest under Rule 4-1.7, the lawyer must move to withdraw under Rule 4-1.16(a); but if the court requires the lawyer to continue, the lawyer must comply under Rule 4-1.16(c), and may offer the testimony in narrative form only if the court so orders under Rule 4-3.3(a)(4). If the client gives no advance notice and offers false testimony, Rule 4-3.3(a)(2) requires reasonable remedial measures: persuade the client to correct it, and failing that, disclose to the court.

In practice

Under the Florida rules as they stood at the time of this 2005 opinion, the opinion holds that, in the narrow case where the lawyer knows the client will commit perjury, the duty of candor in Rule 4-3.3 overrides confidentiality and requires disclosure to the court. The opinion makes clear that quitting the case is not a substitute for disclosure, because withdrawal does not stop the perjury. Per the opinion, the lawyer escalates from persuasion, to a threat of disclosure, to actual disclosure, then moves to withdraw because of the resulting conflict, and must remain if the court orders it. The opinion repeatedly confines its holding to known (not suspected) perjury and leaves the timing and form of disclosure to the court.

Common questions

Q: My client says he is going to lie on the stand. Can I just withdraw and stay quiet?

A: No. The opinion concludes that withdrawal alone does not fulfill the lawyer's obligation because it does not prevent the perjury; the lawyer must disclose the client's intent to commit perjury to the court.

Q: What is the sequence the opinion expects before disclosure?

A: Per the opinion and the comment to Rule 4-3.3, the lawyer must first try to persuade the client to testify truthfully, then threaten to disclose, and if that fails, disclose the client's intent to the court along with information sufficient to prevent the perjury.

Q: How and when is the disclosure made?

A: The opinion states the timing may vary with the facts and the disclosure may in some cases be made ex parte in camera, but the method is ultimately subject to the court's discretion.

Q: What if the court orders me to keep representing the client anyway?

A: The opinion concludes that, notwithstanding good cause to withdraw under Rule 4-1.16(a), if the court requires the lawyer to continue, the lawyer must comply under Rule 4-1.16(c), and may present the testimony in narrative form only if the court so orders.

Q: Does this apply when I only suspect, but do not know, that my client will lie?

A: No. The opinion is expressly limited to the situation where the lawyer definitely knows the client intends to commit perjury and does not address mere suspicion.

Background and rules framework

The opinion interprets Rule 4-3.3 (candor toward the tribunal, Model Rule 3.3), Rule 4-1.6 (confidentiality, Model Rule 1.6, including the mandatory exception in 4-1.6(b)(1)), Rule 4-1.2(d) (assisting criminal or fraudulent conduct, Model Rule 1.2(d)), Rule 4-1.7 (conflict of interest, Model Rule 1.7), and Rule 4-1.16 (declining or terminating representation, Model Rule 1.16). It also refers to Florida Statutes sections 837.02 (perjury) and 777.011 (principals).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 / Fla. Rule 4-3.3 (candor toward the tribunal)
• Model Rule 1.6 / Fla. Rule 4-1.6(b)(1) (confidentiality; duty to reveal to prevent a crime)
• Model Rule 1.2(d) / Fla. Rule 4-1.2(d) (assisting criminal or fraudulent conduct)
• Model Rule 1.7 / Fla. Rule 4-1.7 (conflict of interest)
• Model Rule 1.16 / Fla. Rule 4-1.16(a), (c) (withdrawal; continuing on court order)

Statutes:

• Fla. Stat. section 837.02 (perjury)
• Fla. Stat. section 777.011 (principal in the first degree)

See also

• Florida Bar Op. 07-1: Client-Wrongfully-Obtained Documents
• Florida Bar Op. 12-1: Plea Waivers and Prosecutorial Misconduct
• CA Ethics Op. 2015-192: Withdrawal and Client Confidences

Source

• Landing page: https://www.floridabar.org/etopinions/opinion-04-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/05/FL-Bar-Ethics-Op-04-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 04-1
June 24, 2005
Advisory ethics opinions are not binding.
A lawyer whose client has repeatedly stated that the client will commit perjury must withdraw from the representation and inform the court of the client’s intent to lie under oath. When the withdrawal and disclosure occur depends on the circumstances and may be made ex parte in camera if permitted by the court. Note: This opinion was approved by The Florida Bar Board of Governors on October 21, 2005. RPC: 4-1.2(d), 4-1.6, 4-1.7, 4-1.16, 4-3.3 Statutes: 837.02 and 777.011, Florida Statutes A member of The Florida Bar has inquired about the appropriate course of conduct in the representation of a client who has stated his intent to commit perjury at his upcoming criminal trial. The client has repeatedly expressed the client’s intent to commit perjury and, despite the lawyer’s repeated warnings, insists upon testifying falsely. The client has been warned that the lawyer must and will advise the court if a fraud is made upon the court. The lawyer has questioned the lawyer’s ethical obligations under this scenario. This inquiry addresses the circumstances when a lawyer definitely knows that the client intends to commit perjury. This is distinct from the many other situations where the lawyer may suspect but does not know that the client intends to commit perjury. This opinion only addresses this specific inquiry. Many ethics rules relate to this inquiry. Rule 4-1.2(d), Rules Regulating The Florida Bar, prohibits a lawyer from assisting a client in conduct the lawyer knows or reasonably should know is criminal or fraudulent. Rule 4-1.6, the confidentiality rule, which is very broad, applies “to all information relating to the representation, whatever its source.” Comment, Rule 4-1.6. However, there are exceptions to the confidentiality rule. Rule 4-1.6(b)(1) requires a lawyer to reveal information necessary to prevent a client from committing a crime. While interpretation of statutes is beyond the scope of an ethics opinion, it appears that it is a crime for a lawyer to permit or assist a client or other witness to testify falsely. See Florida Statutes §§ 837.02 and 777.011. The “Candor Towards the Tribunal” rule, Rule 4-3.3, provides in pertinent part: (a) False Evidence; Duty to Disclose. A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

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(4) permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) Extent of Lawyer’s Duties. The duties stated in paragraph (a) continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6 [concerning lawyer-client confidentiality]. [Emphasis added.] A lawyer’s obligation to make disclosures under Rule 4-3.3 is triggered when the lawyer knows that a client or a witness for the client will make material false statements to a tribunal. Under the facts presented, the lawyer knows the client will make a misrepresentation to the court because the client has repeatedly expressed his intent to commit perjury. The comment to Rule 4-3.3 provides the following guidance: If a lawyer knows that the client intends to commit perjury, the lawyer’s first duty is to attempt to persuade the client to testify truthfully. If the client still insists on committing perjury, the lawyer must threaten to disclose the client’s intent to commit perjury to the judge. If the threat of disclosure does not successfully persuade the client to testify truthfully, the lawyer must disclose the fact that the client intends to lie to the tribunal and, per 4-1.6, information sufficient to prevent the commission of the crime of perjury. A lawyer is required to reveal information that is necessary to prevent a client from committing a crime, including the crime of perjury. Rule 4-1.6(b)(1), Rules Regulating The Florida Bar. The comment to Rule 4-1.6 provides: It is admittedly difficult for a lawyer to ‘know’ when the criminal intent will actually be carried out, for the client may have a change of mind.

Where practical the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to the purpose. If the lawyer knows that the client will testify falsely, withdrawal does not fulfill the lawyer’s ethical obligations, because withdrawal alone does not prevent the client from committing perjury. Rather, a lawyer must disclose to the court a client’s intention

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to commit perjury. Timing of the disclosure may vary based on the facts of the case and, in some cases, may be made ex parte in camera. Ultimately, the method of disclosure is subject to the discretion of the court. This disclosure causes a conflict of interest between the lawyer’s ethical obligation to disclose and the client’s interest. Rule 4-1.7, Rules Regulating The Florida Bar. Due to the conflict, the lawyer must move to withdraw. Rule 4-1.16(a), Rules Regulating The Florida Bar. Notwithstanding good cause to withdraw, if the court requires the lawyer to continue the representation, the lawyer must comply with the court’s order. Rule 4-1.16(c), Rules Regulating The Florida Bar. A lawyer may offer the client’s testimony in the narrative only if the court orders the lawyer to do so. Rule 4-3.3(a)(4), Rules Regulating The Florida Bar. In the event that the client does not give advance notice to the lawyer prior to testifying falsely, Rule 4-3.3(a)(2) and the comment require the lawyer to take reasonable remedial measures to rectify the fraud. The comment to Rule 4-3.3 states: When false evidence is offered by the client, however, a conflict may arise between the lawyer’s duty to keep the client’s revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures.

If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation....[I]f withdrawal will not remedy the situation or is impossible and the advocate determines that disclosure is the only measure that will avert a fraud on the court, the advocate should make disclosure to the court. It is for the court then to determine what should be done-making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. In conclusion, when a lawyer is representing a criminal client who has stated an intention to commit perjury, the lawyer is obligated, pursuant to Rules 4-1.2(d), 4- 1.6(b)(1) and 4-3.3(a)(4), to disclose the client’s intent to the court. If the lawyer is not given advance notice of the client’s intent to lie, and the client offers false testimony, then the lawyer must convince the client to agree to disclosure and remediation of the false testimony; failing that, the lawyer must disclose to the court anyway. Absent client consent, the lawyer’s disclosure of the client’s false testimony or intent to offer false testimony will create a conflict between the lawyer and the client requiring the lawyer to move to withdraw from representation pursuant to Rule 4-1.16(a). If the court requires the lawyer to remain in the case, despite good cause for withdrawal, the lawyer must do so. Rule 4-1.16(c). It is then up to the court to determine what should be done with the information. This opinion is limited to the situation presented when a lawyer knows that

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his or her client is going to commit perjury. This opinion does not address the situation when a lawyer merely suspects but does not know that the client intends to commit perjury.