Ezel / Ethics Opinions / OCBAR

How did Orange County's 2003 opinion address a criminal client's stated intent to testify falsely?

Short answer The opinion proposed an actual-knowledge threshold; if the client admitted an intent to lie, counsel would first try to dissuade the client and then consider withdrawal or narrative testimony.
Bar
OCBAR
Issued
2003
Source
View official page

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This page answers the general question as of 2003. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2003
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as an official web page) is the authoritative source for any reliance.
View original ethics opinion (official page)

Plain-English summary

The 2003 opinion addresses a criminal defense lawyer whose client indicates an intent to testify falsely. The committee calls the relevant evidentiary threshold a matter of first impression in California and proposes an actual-knowledge standard based on the client's admission. It says suspicion, likelihood, or even strong belief does not meet that proposed threshold.

Under the opinion's approach, a lawyer who only suspects false testimony continues a professional examination and possible rehabilitation. If the client admits the intent to lie, the lawyer first attempts to dissuade the client. If that fails, the opinion says the lawyer may seek to withdraw but does not encourage withdrawal as the default response.

The committee instead describes advising the client about perjury and the risks of narrative testimony, then proceeding with a narrative form that does not have counsel sponsor the false statements. The opinion treats its standard and procedure as its own proposal within the 2003 California framework.

In practice

The committee's proposed response changes when the lawyer has actual knowledge from the client's admission. It calls for dissuasion first and then addresses withdrawal and narrative testimony while preserving counsel's duty not to present known falsehoods as true.

Common questions

Q: Is a lawyer's suspicion enough under this opinion's proposed standard?

A: No. The committee distinguishes suspicion and likelihood from actual knowledge based on the client's admission.

Q: What is the first step after the client admits an intent to commit perjury?

A: The opinion says counsel must first attempt to dissuade the client.

Q: Did the committee favor immediate withdrawal?

A: No. It says withdrawal may be sought but is not encouraged as the usual response in its analysis.

Background and rules framework

The opinion discusses the lawyer's candor obligations under former California Rule 5-200 and the withdrawal framework of former Rule 3-700. It also considers ABA Model Rules 1.6 and 3.3 while proposing a California approach to the stated criminal-defense problem.

Citations and references

Rules of Professional Conduct:

  • Former California Rules 5-200 and 3-700
  • ABA Model Rules 1.6 and 3.3

See also

Source

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