The Client Perjury Problem
By Saul Jay Singer
A few months ago, I rediscovered L.A. Law on one of the “classic
TV” cable stations and, although it is dated and hackneyed in
many respects, I am very much enjoying my reunion with the show and
its characters. Particularly interesting to me now is how the series
consistently plays fast and loose with the rules of professional conduct.
Though I appreciate that it may be necessary to take certain liberties
to promote dramatic development, some of the scenarios are so ethically
untenable that I am reduced to screaming at the television set. In one
particularly egregious episode, for example, one long-term client of
McKenzie Brackman sues another such client, and two firm lawyers enter
their respective appearances—on opposite sides of the same case.[1]
A very interesting episode raises a different ethical issue. Victor
Sifuentes, who has been appointed by the court to defend Lionel Sands
in a murder case, is disgusted by his cold-blooded client, whom he is
virtually certain has committed the heinous crime. With the evidence
overwhelmingly against him and facing certain conviction, Sands instructs
Sifuentes to call him as a witness to testify in his own defense.
In a highly dramatic moment, Sifuentes, oozing skepticism and doubt,
sternly warns Sands about the penalties of perjury and asks his sociopathic
client if he intends to lie under oath. The cunning Sands ducks the
issue, responding that everyone is probably better off if Sifuentes
does not know the answer to that question.
Sands invents a preposterous, but devilishly clever, narrative: he
admits to raping the decedent, but denies killing him. He testifies
that the decedent died when, in sheer horror and utter despondency at
being sexually violated, he killed himself with the “murder weapon.”
The jury, finding reasonable doubt, acquits the defendant, who gleefully
exults in victory. A rape conviction means, at most, seven years incarceration,
but a murder conviction would have resulted in a life sentence.
Sifuentes’ nightmare scenario led me to consider whether he
could offer Sands’ testimony at trial in a District of Columbia
court. Doesn’t a D.C. lawyer have the duty to refuse to offer
evidence that he knows to be false? On the other hand, doesn’t
he also have a duty to competently and zealously advocate the client’s
position and preserve client confidentiality?
In a significant departure from the American Bar Association Model
Rules of Professional Conduct, which are more-commonly adopted and better
known, the District of Columbia Rules of Professional Conduct walk a
somewhat unique path between these conflicting ethical duties.[2] The
analysis begins with Rule 3.3(a)(4) (Candor to Tribunal):
Thus, in general, if a lawyer knows that the proffered evidence
is false, he may not offer it. However, there are two reasons under
the D.C. rules why Sifuentes may, nonetheless, offer his client’s
testimony here.
First, he does not know that Sands is lying. The standard for
refusing to offer a client’s testimony is actual knowledge[3]
of its falsity. Reasonable suspicion—or even when the client’s
testimony is outlandish, unsupported by other evidence, and contradicted
by credible evidence—is insufficient to prevent the lawyer from
eliciting the testimony.[4] As such, Sands was very wise, indeed, for
refusing to admit his intention to commit perjury to his counsel.
Second, Rule 3.3(a)(4) carves out a significant and important exception
under Rule 3.3(b) for a defendant’s testimony in a criminal case,
even when defendant’s counsel has actual knowledge that the testimony
is false:
Thus, Sifuentes must first talk to his client and take every reasonable
step, short of disclosure, to encourage Sands not to commit perjury.
Failing that, he would be required to seek leave of court to withdraw
from the case,[5] but only if withdrawal can be accomplished without
harming the client.[6] Otherwise, Sifuentes can permit Sands to testify,
but only under limited conditions, which include eliciting the perjured
testimony in narrative form (i.e., no direct examination)[7] and eschewing
the use of such testimony, in final argument and otherwise.[8]
It is important to note that the “criminal exception”—i.e.,
where the D.C. rule permits a lawyer in criminal cases to offer testimony
which she knows to be false—applies only to testimony by the
defendant. That begs the question: What should Sifuentes do if an
exculpatory witness he calls to testify at Sands’ trial offers
testimony which Sifuentes knows to be false? Similarly, in a civil case
where the criminal exception does not apply, what is a lawyer to do
if her client commits perjury?
Comment [4] to Rule 3.3 provides that “when evidence that a
lawyer knows to be false is provided by a person who is not the client,
the lawyer must refuse to offer it regardless of the client’s
wishes.”[9] But what is a lawyer to do when the witness unexpectedly
perjures himself at trial?
Legal ethicists have struggled with this question, and there is simply
no satisfactory solution. For Sifuentes to continue to elicit testimony
that he knows to be false would violate Rules 3.3(a) and 1.2(e),[10]
but to disclose that the witness testified falsely would, among other
things, violate the duties of loyalty and confidentiality[11] and would
irreparably damage the client. His only possible course of action at
a D.C. trial is to exercise a “silent veto”—turn to
the tribunal, announce “I have no more questions for this witness,”
take his seat, and refuse thereafter to refer to or rely upon the perjured
testimony. Though the reality is that everyone in the courtroom will
understand exactly what has just happened, and though it is likely that
the client’s case will be effectively sabotaged, this may be the
only step Sifuentes can take that is consistent with the D.C. rules.
Next episode: Arnie Becker violates every rule of professional conduct—in
a single, 24-hour period. Stay tuned.
Legal Ethics counsel Hope C. Todd and Saul Jay Singer are available
for telephone inquiries at 202-737-4700, ext. 3231 and 3232, respectively,
or by e-mail at ethics@dcbar.org.
Notes
[1] Pursuant to D.C. Rule 1.7(a) (Conflict of Interest: General), there
is an absolute proscription against such representation, even if both
clients give informed consent. It turns out, however, that under the
California Rules of Professional Conduct in effect at the time, such
representation apparently was permitted with the clients’ written
consent. California Rule 3-310(C)(2).
[2] The D.C. rules specifically reject the ABA approach, which more
broadly permits the attorney to disclose her client’s perjury.
[3] As Rule 1.0(f) (Terminology) provides, “‘Knowingly,’
‘known,’ or ‘knows’ denotes actual knowledge
of the fact in question. A person’s knowledge may be inferred
from circumstances.” (Emphasis added). See also Rule 3.3,
Comment [6].
[4] As per Rule 3.3, Comment [7]: “Because of the special protections
historically provided criminal defendants, however, this rule does not
permit a lawyer to refuse to offer the testimony of such a client where
the lawyer reasonably believes but does not know that the testimony
will be false.” On the other hand, as the rule makes clear, were
Sands not a criminal defendant, Sifuentes could refuse to offer his
testimony even if he had only a “reasonable belief” that
his client is lying.
[5] “Withdrawal is strongly preferred to the presentation of false
testimony, and must be attempted absent serious prejudice to the client.”
D.C. Bar Legal Ethics Committee Opinion 234.
[6] See Comments [7] and [8] for a discussion regarding the parameters
of the potential “harm to the client” contemplated by Rule
3.3.
[7] See Legal Ethics Committee Opinion 320:
Nonetheless, the lawyer may not assist the client in preparing the
perjured narrative statement, as to do so would violate Rules 3.3(a)(2)
and 1.2(e) (Scope of Representation). See Legal Ethics Committee
Opinion 234.
[8] Counsel may not examine his client in such a way as to elicit testimony
the lawyer knows to be false, nor may he argue the probative value of
the client’s false testimony in closing argument. However, Rule
3.3(b) does not prevent the lawyer from engaging in normal examination—question
and answer style—on subjects where the lawyer believes the client
will testify truthfully. Id.
[9] See also Rule 3.3, Comment [11]: “Generally speaking,
a lawyer may not offer testimony or other proof, through a non-client,
that the lawyer knows to be false.”
[10] “A lawyer shall not . . . assist a client to engage in conduct
that the lawyer knows is criminal or fraudulent . . .” Rule 1.2(e).
[11] There are important exceptions that arise under Rule 1.6(d) (Confidentiality
of Information) which are beyond the scope of this article. The interested
reader, however, should carefully consider those exceptions.
Disciplinary Actions Taken by the Board on Professional Responsibility
Hearing Committees on Negotiated Discipline
IN RE QUINNE HARRIS-LINDSEY. Bar No. 451238. August 12, 2009. The Board
on Professional Responsibility’s Ad Hoc Hearing Committee recommends
that the D.C. Court of Appeals accept
Harris-Lindsey’s petition for negotiated disposition and suspend
her for one year, with six months stayed. Harris-Lindsey also will face
one year of probation to begin at the commencement of the period of
suspension, with the conditions that she attend a continuing legal education
course, and that she consult with the D.C. Bar Practice Management Advisory
Service before entering private practice, for violations of Rules 1.1(a),
1.1(b), 1.3(a), 1.3(c), 1.5(f), 1.15(a), and 8.4(d) and D.C. Bar R.
XI, § 19(f).
IN RE MICHAEL J. RIGAS. Bar No. 317909. August 12, 2009. The Board
on Professional Responsibility’s Hearing Committee Number Four
recommends that the D.C. Court of Appeals accept Rigas’ petition
for negotiated disposition and suspend him for one year, nunc pro tunc,
to January 25, 2007, for violations of Rules 8.4(b) and 8.4(c) and D.C.
Bar R. XI, § 10(d).
Disciplinary Actions Taken by the
Board on Professional Responsibility
Original Matters
IN RE KARL W. CARTER JR. Bar No. 113449. August 5, 2009. The Board on
Professional Responsibility recommends that the D.C. Court of Appeals
suspend Carter for 18 months with his reinstatement conditioned upon
his (1) providing Bar Counsel, to the extent he has not done so, with
a full answer and all the documents he has been ordered to provide in
the board’s order issued on May 8, 2006, in Bar Docket Nos. 015-06
and 071-06, and all the documents he has been ordered to provide Bar
Counsel in the court’s order entered on August 3, 2006, in Bar
Docket No. 071-06; (2) providing prompt and full restitution of fees
paid to him by two clients; and (3) demonstrating his fitness, under
D.C. Bar Rule XI, § 16, to resume the practice of law. The matter
arose from five consolidated disciplinary proceedings stemming from
Carter’s representation of three clients in employment discrimination
cases and from Bar Counsel’s investigation of allegations in two
other unrelated matters. In regard to the first employment matter, Carter
failed to represent the client with diligence and zeal, to respond with
reasonable promptness, and to return unearned fees. Additionally, he
engaged in conduct involving dishonesty. In the second and third employment
matters, Carter failed to provide competent representation, to represent
the client with commensurate skill/care, to represent the client with
diligence and zeal, to respond with reasonable promptness, to explain
the matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation, and to return
unearned legal fees. He also seriously interfered with the administration
of justice. Additionally, in regard to the second employment matter,
Carter failed to comply with reasonable requests for information. Finally,
regarding the two other unrelated matters, Carter failed to respond
to Bar Counsel, seriously interfered with the administration of justice,
and failed to comply with a board order and an order of the D.C. Court
of Appeals regarding a subpoena duces tecum. Rules 1.1(a), 1.1(b),
1.3(a), 1.3(c), 1.4(a), 1.4(b), 1.16(d), 8.4(c), and 8.4(d) and D.C.
Bar R. XI, § 2(b)(3).
IN RE IDUS J. DANIEL JR. Bar No. 405077. August 3, 2009. The Board
on Professional Responsibility recommends that the D.C. Court of Appeals
suspend Daniel for one year. Daniel violated the rules in connection
with his management of a purported Interest on Lawyers’ Trust
Account and in connection with statements he made to the Internal Revenue
Service relating to that account. Two members of the board wrote separate
statements recommending the imposition of a fitness requirement as a
condition of Daniel’s reinstatement. Rules 1.15(a) and 8.4(c).
IN RE ROBERT J. PLESHAW. Bar No. 938241. August 7, 2009. The Board
on Professional Responsibility recommends that the D.C. Court of Appeals
disbar Pleshaw. While representing clients in three separate matters,
Pleshaw violated multiple Rules of Professional Conduct, including reckless
misappropriation, making a false statement to a tribunal, and intentionally
charging an illegal fee. The first matter related to Pleshaw’s
handling of a civil action on behalf of a client. In that matter, he
incompetently handled a case resulting in default judgment by knowingly
making false statements to the court. In the second matter concerning
Pleshaw’s misconduct as conservator for a client, he engaged in
reckless misappropriation on two occasions by paying himself commissions
without prior court approval. The third matter arose out of Pleshaw’s
service as counsel for the personal representative in a probate matter
where he engaged in reckless misappropriation by taking fee without
prior court approval and knowingly making false statements to Bar Counsel
during the disciplinary investigation. Rules 1.1(a), 1.1(b), 1.3(c),
1.5(a), 1.5(b), 1.15(a), 1.16(a)(3), 3.3(a)(1), 8.4(a), 8.4(c), and
8.4(d).
IN RE L. SAUNDRA WHITE. Bar No. 463929. August 20, 2009. The Board
on Professional Responsibility recommends that the D.C. Court of Appeals
suspend White for six months with fitness. White accepted employment
on behalf of a client in a matter on which White had been personally
and substantially involved as an employee of the District of Columbia
Office of Human Rights. Two members of the board concurred and dissented
in part, stating that White also violated Rule 8.4(d) by seriously interfering
with the administration of justice. Rule 1.11.
Disciplinary Actions Taken by the District of Columbia Court of
Appeals
Original Matters
IN RE K. DUFF LEWIS. Bar No. 392240. August 13, 2009. The D.C. Court
of Appeals reinstated Lewis, conditioned upon his continued compliance
with the repayment plan he has entered into with the Clients’
Security Fund.
IN RE GARLAND H. STILLWELL. Bar No. 473063. August 27, 2009. The D.C.
Court of Appeals accepted Stillwell’s petition for negotiated
disposition and suspended him for 60 days. Specifically, Stillwell acknowledges
he inaccurately represented his status at the law firm where he was
employed, made a false representation on behalf of a friend, improperly
charged personal expenses to others, worked outside the law firm against
the firm’s written policies, and asserted a position on behalf
of clients that was adverse to a position taken by a client of his firm
without first obtaining informed consent of all parties. Rules 1.7(b)(1)
and 8.4(c).
Reciprocal Matters
IN RE NATHAN H. WASSER. Bar No. 77297. August 6, 2009. In this reciprocal
matter, the D.C. Court of Appeals imposed disbarment as reciprocal discipline.
Wasser was disbarred by consent in Maryland and also disbarred by order
of the Virginia State Bar Disciplinary Board.
IN RE CHANDRA MAHINDA BOGOLLAGAMA. Bar No. 418491. August 20, 2009.
In a reciprocal matter from Virginia, the D.C. Court of Appeals disbarred
Bogollagama as identical reciprocal discipline. The Circuit Court of
Virginia revoked Bogollagama’s license to practice law for engaging
in misappropriation of entrusted funds.
IN RE MARK S. GUBERMAN. Bar No. 442683. August 13, 2009. In a reciprocal
matter from Maryland, the D.C. Court of Appeals imposed nonidentical
reciprocal discipline and suspended Guberman for 18 months, effective
November 17, 2006, the date on which Guberman filed an affidavit in
compliance with the requirements of D.C. Bar Rule XI, § 14(g).
Additionally, within six months after his resumption of law practice
in the District of Columbia, Guberman shall enroll in and complete a
continuing legal education course in professional responsibility for
attorneys. The Court of Appeals of Maryland disbarred Guberman for engaging
in conduct involving dishonesty and misrepresentation by falsely representing
to representatives of his law firm that he had filed an appeal on behalf
of a client. Further, the Maryland court found that Guberman engaged
in conduct prejudicial to the administration of justice by creating
falsified filing stamps on the purported pleadings, falsely certifying
that the pleadings had been filed with the court. No misstatements concerning
the purported appeal were directed to the courts or to the client.
IN RE LAWRENCE T. ROBINSON. Bar No. 210823. August 27, 2009. In a reciprocal
matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal
discipline and indefinitely suspended Robinson, with the right to apply
for reinstatement after being reinstated in Maryland or after five years,
whichever comes first. Robinson stipulated, and the Maryland court found,
that he had violated Maryland Rules of Professional Conduct 8.4(b) and
8.4(d).
Informal Admonitions Issued by the Office of Bar Counsel
IN RE NASH Y. FAYAD. Bar No. 482605. July 23, 2009. Bar Counsel issued
Fayad an informal admonition for failing to ensure the client knew his
appeal was denied and failing to communicate the basis or rate of the
legal fee in writing while representing a client in an immigration matter.
Rules 1.4(a), 1.5(b), and 1.16(d).
IN RE JOHN A. NOWACKI. Bar No. 474492. July 23, 2009. Bar Counsel issued
Nowacki an informal admonition for drafting a proposed U.S. Department
of Justice response to a media inquiry which he knew was inaccurate.
Additionally, Nowacki concealed from Department of Justice officials
his knowledge that staff from the Office of the Attorney General used
political affiliation when accessing candidates from the Executive Office
for the United States Attorney. Rule 8.4(c).
IN RE DAVID F. POWER. Bar No. 360411. July 23, 2009. Bar Counsel issued
Power an informal admonition for filing a claim on behalf of his client
after the statue of limitations had expired while representing a client
in an employee benefits matter. Rules 1.1(a), 1.1(b), and 1.3(c).
