31 Pages Posted: 10 Mar 2008 Last revised: 22 Apr 2008
The ABA, relying on tradition as well as substantial policy considerations, has traditionally held that it is ethically unthinkable for a lawyer to disclose her client's fraud on the court. That tradition appeared to have been reversed in 1983, when the ABA adopted Model Rule 3.3 requiring lawyers to take remedial action in cases of known perjury.
However, that appearance of a major policy change from the traditional view has been rendered practically meaningless by the requirement that a lawyer have actual knowledge that the testimony is perjurious. Thus, a defense lawyer may refrain from concluding that her client's testimony is perjurious even though the client has told the lawyer inconsistent versions of the truth, and even though the client's testimony is preposterous, unsupported by any other evidence, and contradicted by credible evidence.
Nevertheless, there remains a critical policy issue under Model Rule 3.3, because lawyers who choose to know about client perjury are virtually always court-appointed attorneys representing criminal defendants who are poor and members of minority groups. This has produced a race- and class-based double standard, resulting in a de facto denial of equal protection of the laws.
Moreover, the Supreme Court has held that the Sixth Amendment forbids an agent of the state to pose as a pretended friend of a represented defendant, to elicit unwarned admissions from the defendant, and then to reveal those admissions at trial. Nevertheless, that is what happens under Model Rule 3.3. The lawyer is required, on pain of professional discipline by the state, to deliberately elicit self-incriminating information from the client; at the same time, the lawyer is forbidden by the state to warn the client in advance that, if the client should testify falsely, the lawyer will reveal the client's confidences during the trial. Ironically, therefore, the Sixth Amendment guarantees the defendant the right to rely on counsel to advise him about his Fifth Amendment privilege before he incriminates himself to a third party, but there is no one to advise the defendant about his Fifth Amendment privilege before he is trapped by his lawyer into incriminating himself.
Keywords: Perjury, Trilemma, Sixth Amendment, Fifth Amendment, Right to Counsel, Privilege Against Self-Incrimination, Equal Protection
JEL Classification: K4
Suggested Citation: Suggested Citation
Freedman, Monroe H., Getting Honest About Client Perjury. Georgetown Journal of Legal Ethics, Vol. 21, No. 133, Winter 2008; Hofstra Univ. Legal Studies Research Paper No. 08-02. Available at SSRN: https://ssrn.com/abstract=1103208