What must a Tennessee lawyer do when the client has committed perjury during an ongoing court proceeding and refuses to recant?

Plain-English summary

The opinion addressed a lawyer whose client admitted committing perjury and refused to recant during a still-pending hearing. It framed the tension between two duties under the former Code: Canon 4 and DR 4-101 required the lawyer to preserve the client's confidences and secrets (with DR 4-101(C) permitting disclosure of a client's intention to commit a crime), while DR 7-102 prohibited a lawyer from knowingly using perjured testimony (DR 7-102(A)(4)) or assisting a client in fraudulent conduct (DR 7-102(A)(7)) and, in DR 7-102(B)(1), required a lawyer whose client had perpetrated a fraud on a person or tribunal to call on the client to rectify it and, if the client refused, to reveal the fraud, "except when the information is protected as a privileged communication." Ethical Consideration 7-26 reinforced the bar on knowingly using false evidence.

The opinion surveyed the ABA's shifting treatment of the conflict: ABA Formal Opinion 287 (1953) and the 1974-amended DR 7-102(B)(1), as read by ABA Formal Opinion 341 (1975) and Informal Opinion 1314 (1975), had treated confidentiality as paramount, requiring the lawyer to seek withdrawal but not to disclose. It then noted the retreat from that view: Nix v. Whiteside (holding a defendant has no right to counsel's help in giving false testimony), the adoption of Model Rule 3.3 (requiring disclosure of false evidence notwithstanding Rule 1.6), and ABA Formal Opinions 87-353 (1987) and 93-376 (1992), which required disclosure when withdrawal would not cure the perjury. It observed that Tennessee still followed the Model Code, but that Board Opinion 87-F-109 (1987) had already taken a disclosure-oriented position resembling Model Rule 3.3.

Applying this to the facts, the opinion reasoned that because the hearing was still proceeding, the perjury was an ongoing, not concluded, fraud on the court, so it was not protected as a privileged communication and the lawyer had to do whatever was possible to make the fraud known. It concluded that the lawyer must ask the client to recant; if the client refused, seek to withdraw, even by a "noisy" withdrawal as a last resort; if withdrawal did not sufficiently reveal the perjury, make complete disclosure to the tribunal; and even if the court refused withdrawal, still disclose, while not questioning the client in the area of the perjury and not using the perjured testimony in argument.

Currency note

Vacated and overruled. The Board of Professional Responsibility vacated Formal Ethics Opinion 93-F-133 on September 11, 2015, "due to changes in the laws or rules." Before that, the Tennessee Supreme Court overruled this opinion: as recorded in Formal Ethics Opinion 96-F-133(a), the Court rejected a proposed amendment to DR 7-102(B)(1) that would have confirmed 93-F-133 and, by order entered October 28, 1996, overruled it, so that the duty to protect client confidences prevailed over the duty to disclose client fraud or perjury. This opinion therefore has no continuing force and is reproduced and summarized here only as a historical research record. The current rule is governed by Tennessee RPC 3.3 (candor toward the tribunal) and RPC 1.6 (confidentiality); verify the current rules before acting.

Common questions

Q: Did 93-F-133 require a Tennessee lawyer to disclose a client's perjury to the court?

A: As originally issued, yes, for perjury in an ongoing proceeding. It concluded the lawyer had to seek to withdraw and, if withdrawal did not reveal the perjury or was not permitted, disclose it to the tribunal, reasoning that an ongoing fraud on the court was not protected as privileged.

Q: Is that still the rule in Tennessee?

A: No. The Tennessee Supreme Court overruled 93-F-133 (recorded in Opinion 96-F-133(a), October 28, 1996), holding the duty to protect client confidences prevailed, and the Board vacated 93-F-133 in 2015. Current practice is governed by RPC 3.3 and RPC 1.6.

Q: What was a "noisy" withdrawal as the opinion used the term?

A: Per the opinion, a withdrawal that, even as a last resort, brings attention to the lawyer's reasons for terminating the representation. The opinion cited ABA Formal Opinions 92-366 and 93-376 for the propriety of such withdrawals.

Background and rules framework

The opinion interpreted the former Code's DR 7-102 (representing a client within the bounds of the law, including DR 7-102(A)(4), (A)(7), and (B)(1)), DR 4-101 and DR 4-101(C) (confidences and secrets), and EC 7-26, against the ABA's evolving position and the then-new Model Rule 3.3. The modern analogs are Model Rule 3.3 / Tennessee RPC 3.3 (candor toward the tribunal, including remedial disclosure of false evidence), Model Rule 1.6 / Tennessee RPC 1.6 (confidentiality), and Model Rule 1.16 / Tennessee RPC 1.16 (withdrawal).

Citations and references

Rules of Professional Conduct (former Code):

• DR 7-102(A)(4) (knowing use of perjured testimony); DR 7-102(A)(7) (assisting illegal or fraudulent conduct); DR 7-102(B)(1) (rectifying or revealing client fraud). Modern analog: Model Rule 3.3 / Tennessee RPC 3.3
• DR 4-101(C) (disclosure of a client's intention to commit a crime). Modern analog: Model Rule 1.6 / Tennessee RPC 1.6
• EC 7-26 (no use of false, fraudulent, or perjured evidence)

Cases:

• Nix v. Whiteside, 475 U.S. 157 (1986) (no Sixth Amendment right to counsel's assistance in presenting false testimony)

Other opinions cited:

• ABA Formal Opinions 287 (1953), 341 (1975), 87-353 (1987), 93-376 (1992), and 92-366 (1992); ABA Informal Opinion 1314 (1975)
• Tennessee Formal Ethics Opinion 87-F-109 (1987) (disclosure of a client's proposed fraud)

See also

• Tennessee Op. 96-F-133(a): Confidentiality Over Disclosing Client Fraud (Overruling 93-F-133)
• ABA Formal Op. 93-376: Client Lying in Discovery

Source

• Landing page: https://www.tbpr.org/ethic_opinions/93-f-133

Original opinion text

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

93-F-133 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the laws or rules.

Formal Ethics Opinion 93-F-133

Inquiry as to the responsibility of an attorney when his/her client has committed perjury.

The following fact situation is presented:

The lawyer is advised by the client that the client has committed perjury. The lawyer asked the client to recant. The client refuses to do so. Should the lawyer move the court to be relieved of representation even though the attempt to withdraw at such time may create suspicions of impropriety in the mind of the judge. If the judge does not permit withdrawal and the client is on the witness stand, following the revelation of perjury to the lawyer, can the lawyer propound questions to the client in the area of the perjured testimony, which questions will enable the client to tender or reinforce the perjured testimony? If the lawyer is required to continue in the representation, can the lawyer argue the perjured testimony to the trier of fact?"

Two Canons are relevant. Canon 4 requires an attorney to "preserve the confidences and secrets of a client." DR 4-101(C) permits an attorney to disclose a confidence or secret if it is "the intention of his client to commit a crime." (emphasis supplied).

DR 7-102 directly addresses perjury by witnesses. DR 7- 102(A)(4) prohibits a lawyer from "knowingly use(ing) perjured testimony or false evidence." DR 7-102(A)(7) prohibits an attorney from counselling or assisting his client in conduct that a lawyer knows to be illegal or fraudulent. DR 7-102(B) requires that when a client has "perpetrated a fraud upon a person or tribunal" the attorney "shall promptly call upon his client to rectify the same, and if the client refuses or is unable to do so, he shall reveal the fraud to the effected person or tribunal, except when the information is protected as a privileged communication." (emphasis supplied). These Rules are bolstered by Ethical Consideration 7-26 which states as follows:

"The law and Disciplinary Rules prohibit the use of fraudulent, false, or perjured testimony or evidence. A lawyer who knowingly participates in introduction of such testimony or evidence is subject to discipline. A lawyer should, however, present any admissible evidence his client desires to have presented unless he knows, or from facts within his knowledge should know, that such testimony or evidence is false, fraudulent, or perjured."

The duty to protect confidences and to prevent perjury, as set forth in the above rules, are in conflict. The American Bar Association has wrestled with this conflict in its formal opinions.

ABA Formal Opinion 287 (1953) analyzes this conflict in relation to the old Canons of Professional Responsibility. These Canons required attorneys to inform injured persons of fraud or deception by their clients and to disclose perjury. The old Canons also demand the protection of client confidences. The opinion holds that the duty to protect attorney client confidences must remain paramount. Upon being advised of the client's perjury, the attorney is required by this opinion to withdraw, but to not disclose to anyone the perjury of his client. If the attorney is required to remain in the case, the attorney must avoid use of the perjured testimony.

The Code of Professional Responsibility, as originally adopted, contained the same language as present Tennessee DR 7-102(B)(1) with one exception. The last phrase, "... except when the information is protected as a privileged communication" was not included. This Disciplinary Rule thereby directly in conflict with Disciplinary Rule 4-101(C).

In February 1974 the ABA amended 7-102(B)(1) to add the language "except when the information is protected as a privileged communication." The present Tennessee Disciplinary Rule contains this amended language. ABA Formal Opinion 341(1975) reviews the amended rule and opines that if an attorney learns of perjury by his client, it cannot be revealed. ABA Informal Opinion 1314(1975) supports ABA Formal Opinion 341 and declare the confidentiality privilege to be paramount; "The confidentiality privilege, in our opinion, must be upheld over any obligation of the lawyer to betray the client's confidences in seeking rectification of any fraud ..." The opinion states that the attorney must ask the client to disclose the perjury, and if he/she refuses, he/she should attempt to withdraw. However, the attorney cannot in any way disclose the reasons for the withdrawal.

In the last few years, there has been a retreat from the presumption that the confidentiality privilege is paramount. The U.S. Supreme Court in Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988 (1976) held that a criminal defendant is not entitled to assistance of counsel in giving false testimony and that a lawyer who even threatens disclosure of the false testimony does not deprive a client of effective assistance of counsel.

The ABA dramatically changed its ethics rules when it adopted the Model Rules of Professional Responsibility. Rule 3.3(b) of these rules "requires disclosure of information otherwise protected by Rule 1.6 (Confidentiality)" when an attorney learns that he has offered false evidence.

ABA Formal Opinion 87-353 (1987) re-examines these new rules and holds that if a lawyer learns of intentional false testimony by his client, the lawyer must disclose the perjury. The opinion notes that "... withdrawal can rarely serve as a remedy for the client's perjury."

ABA Formal Opinion 93-376 provides that a lawyer who learnsthat a client has lied during pre-trial discovery must first urge his client to rectify the fraud, and then terminate his representation of the client even if the termination is "noisy" bringing attention to his reasons for terminating. 1 If the perjury has still not been corrected the attorney must disclose the perjury.

Tennessee has not adopted the Model Rules of Professional Responsibility. The older Model Code still remains in effect here.

Board of Professional Responsibility Formal Ethics Opinion 87- F-109 (1987) states "that DR 7-102(B)(1) specifically requires the attorney to counsel the client against perpetration of a fraud upon another and, if the client insists on fraudulent conduct, to reveal the potential fraud to the affected person. The client has no privilege of confidentiality with respect to proposed fraudulent activity." Thus the Board has adopted a policy position that resembles the intent of Model Rule 3.3.

In the fact situation presented here, the hearing in which the perjury occurred is still proceeding. Therefore the fraud is not concluded, but ongoing. As an ongoing fraud upon the court, there is no protection by being a privileged communication and the attorney must do whatever is possible to make the fraud known.

In summary, the attorney should request that his client recant the testimony. If the client refuses to do so, the attorney must seek to withdraw, even if, as a last resort, said withdrawal is "noisy". If the withdrawal does not sufficiently reveal the perjury, the attorney must make complete disclosure to the tribunal. If the court does not permit withdrawal, the attorney is still charged with making disclosure of the perjury. The attorney cannot propound questions to the client in the area of the perjury and cannot utilize the perjured testimony in his/her argument.

1 ABA Formal Ethics Opinion 92-366 (1992) held that ..."noisy" withdrawals are proper even if they have the collateral effect of providentially revealing client confidences.

This 10th day of December, 1993.

ETHICS COMMITTEE:

Donna Simpson Massa

Barbara J. Moss

Larry D. Wilks

APPROVED AND ADOPTED BY THE BOARD