If a new lawyer learns a client lied at the original trial, may the lawyer reveal that prior false testimony when seeking post-appeal relief?

Plain-English summary

A lawyer was retained to seek post-appeal remedies for a client convicted of first-degree criminal sexual conduct and assault, after unsuccessful appeals. At trial, with other counsel, the client had testified he "blacked out" from drugs and alcohol and remembered nothing. The client now told present counsel that the trial testimony was untruthful: he had consensual intercourse with the victim and then assaulted her. The lawyer asked whether there was a duty to advise the court of the prior false testimony, recognizing it could lead to a perjury charge but also might help obtain relief.

The opinion concluded the lawyer has no present right or duty to disclose. The prior false testimony is a confidence or secret under MRPC 1.6(a), disclosable only if a MRPC 1.6(c) exception or a MRPC 3.3 duty applies. None did at this point: the client had not consented (1.6(c)(1)); the present lawyer's services had not yet been used to further the false testimony (distinguishing RI-209 and RI-151, where services were used, from RI-111, RI-106, and RI-72, where they were not); and no future crime was intended (1.6(c)(4)). Because the present counsel was not trial counsel, that counsel's services could not have furthered the untruthful testimony under MRPC 3.3.

The opinion then limited how the lawyer may proceed. Under MRPC 3.3 (and MRPC 3.1's bar on nonmeritorious claims), the lawyer may not seek post-appeal relief that relies on the false trial testimony, and if the client's mental condition at the time of the crimes is material to the relief sought, the lawyer may not fail to disclose the now-known facts, a duty that applies under MRPC 3.3(b) regardless of whether the lawyer's services were used to further the act. Only if the prior testimony is not material to the relief may the lawyer proceed without triggering a duty to reveal it (citing RI-33). The opinion stressed the counseling duties of MRPC 1.4 and 1.2: the lawyer must advise the client of the options and the limits MRPC 3.3 places on the lawyer, and may, with the client's consent, reveal the prior false testimony in seeking relief.

Currency note

This opinion was issued in 1996, before later amendments to the Michigan 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: Must a new lawyer report a client's prior perjury to the court?

A: No. The opinion concluded the lawyer has no present duty to disclose the client's prior false trial testimony, which is a protected confidence or secret absent the client's consent or a triggering MRPC 3.3 duty.

Q: Can the lawyer still seek post-appeal relief?

A: Yes, but only if the facts of the prior false testimony are not material to the relief sought, and never by relying on that false testimony.

Q: When would the lawyer have to disclose?

A: The opinion concluded that if the client's mental condition at the time of the crimes is material to the post-appeal relief, the lawyer may not fail to disclose the now-known facts (MRPC 3.3(b)).

Q: What must the lawyer tell the client?

A: The opinion concluded the lawyer must counsel the client on the available options and on the limits MRPC 3.3 places on the lawyer, and may reveal the prior false testimony only if the client consents.

Background and rules framework

The opinion interpreted MRPC 1.6 (Model Rule 1.6) on confidences and secrets and its exceptions, MRPC 3.3 (Model Rule 3.3) on candor to the tribunal, including the continuing duty in MRPC 3.3(b), and the counseling duties of MRPC 1.2 and 1.4 (Model Rules 1.2, 1.4), plus MRPC 3.1's bar on nonmeritorious claims. It relied on RI-33, RI-72, RI-106, RI-111, RI-151, and RI-209.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / MRPC 1.2 (client's objectives; no assisting fraud)
• MR 1.4 / MRPC 1.4 (counseling the client)
• MR 1.6 / MRPC 1.6 (confidences and secrets; exceptions)
• MR 3.3 / MRPC 3.3 (candor to the tribunal; continuing duty)

Other opinions cited:

• Michigan RI-209, RI-151: lawyer's services used to further the act
• Michigan RI-111, RI-106, RI-72: lawyer's services not used to further the act
• Michigan RI-33: materiality and the duty to reveal

See also

• Mich Ethics Op. RI-209: disclosing a client's forged-records authorization
• Mich Ethics Op. RI-151: duty when a client's filed pleadings are false
• Mich Ethics Op. RI-72: discharged lawyer's duty to keep a client's confession confidential

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1143&Type=6

Original opinion text

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

RI-273

June 20, 1996

SYLLABUS

A lawyer may not reveal that a client testified falsely at the trial of a criminal matter, where the client does not consent to the disclosure and the lawyer's services were not used in furtherance of the false testimony.

A lawyer may not seek post-appeal relief on behalf of a client if the facts associated with the client's prior false testimony are material to the relief sought. The lawyer may seek post-appeal relief without revealing the prior false trial testimony if the facts associated with that testimony are not material to the relief sought.

A lawyer must counsel the client on the client's options, and the limitations on the lawyer's conduct presented by the lawyer's knowledge of the client's prior false testimony.

References: MRPC 1.2, 1.4, 1.6, 3.3; RI-33, RI-72, RI-106, RI-111, RI-151, RI-209.

TEXT

A lawyer has been retained to represent a client seeking post-appeal remedies in a criminal case. The client has been convicted of first degree criminal sexual conduct and assault with intent to do great bodily harm less than murder, and appeals were unsuccessful. At the trial, represented by other counsel, the client testified that he had "blacked out" due to the use of drugs and alcohol, and did not remember anything about the crimes alleged. The client has now told present counsel that the client's trial testimony was untruthful, that the client did have intercourse with the victim but that it was consensual, and that the client did assault the victim following intercourse.

The lawyer asks whether there is a duty to advise the court of the client's untruthful trial testimony, recognizing that this may result in a charge of perjury but that it may also assist in obtaining post-appeal relief.

Portions of several Rules are applicable to this inquiry. MRPC 1.4(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. MRPC 1.2 (c) and (d) state:

"(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.

"(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."

MRPC 1.6 (b) and (c) state:

"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

"(1) reveal a confidence or secret of a client;

"(2) use a confidence or secret of a client to the disadvantage of the client . . . .

"(c) A lawyer may reveal:

"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

"(4) the intention of a client to commit a crime and the information necessary to prevent the crime . . . ."

MRPC 3.3 (a) and (b) state:

"(a) 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 . . . .

"(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."

Applying these Rules to the facts as provided, it appears that the lawyer does not have a present right or duty to disclose the client's false testimony. Clearly, this is a "confidence" or "secret" of the client under MRPC 1.6(a), which cannot be revealed or used to the disadvantage of the client unless one of the circumstances set forth in MRPC 1.6(c) applies or one of the duties in MRPC 3.3 is triggered.

In analyzing MRPC 1.6, the exception in MRPC 1.6(c)(1) does not apply unless the client consents, and the exception in MRPC 1.6(c)(3) does not apply to these facts insofar as the lawyer's services have not, as of yet, been used in furtherance of the client's illegal or fraudulent act. Compare RI-209 and RI-151 (lawyers' services used to further the act) with RI-111, RI-106 and RI-72 (lawyers' services not used to further the act). Because the client's revelation does not involve the intention to commit a future crime, MRPC 1.6(c)(4) does not apply. In analyzing 3.3, the current counsel was not counsel at trial, and this counsel's services could not have been used to further the client's untruthful testimony.

If the lawyer proceeds with the representation, the lawyer's knowledge of the client's prior conduct will limit the lawyer's actions. Because of the lawyer's duties under MRPC 3.3, the lawyer may not seek post-appeal relief on behalf of the client that in any way involves reliance on the client's false trial testimony. Pursuant to MRPC 3.1 the lawyer may not submit a nonmeritorious claim. If the facts of the client's mental condition at the time of the crimes alleged is in any manner material to the post-appeal relief sought, the lawyer may not fail to disclose the facts now known in this regard. This duty applies, pursuant to MRPC 3.3(b), regardless of whether the lawyer's services were initially used to further the illegal or fraudulent act. See also, MRPC 1.6(c)(2). Only if the client's prior testimony is not material to the post-appeal relief sought may the lawyer proceed without a duty to reveal the client's prior false testimony being triggered. See RI-33.

Under these circumstances the lawyer's duties to counsel the client, as expressed in MRPC 1.4 and MRPC 1.2, become very important. For example, if the lawyer believes that the new version of the facts disclosed by the client improves the chances of obtaining post-appeal relief, the lawyer may counsel the client as to the risks and benefits involved, and obtain the client's consent to reveal the falsity of the prior testimony. Regardless, the lawyer must advise the client of the limitations on the lawyer's conduct imposed by MRPC 3.3. This may affect the client's decision regarding the scope of post-appeal relief to be sought, or whether to seek such relief at all.

To conclude, the lawyer does not have a present right or duty to disclose the client's prior false testimony. The lawyer may continue to represent the client in seeking post-appeal relief without revealing the prior false testimony only if the facts associated with that testimony are not material to the relief sought. The lawyer must counsel the client with regard to the options available and the limitations on the lawyer's conduct and, if the client consents, may reveal the client's prior false testimony in connection with a request for post-appeal relief.