71 Pages Posted: 24 Feb 2013
Date Written: February 24, 2013
This article offers a new approach to the ethical dilemma facing an attorney representing a criminal defendant who insists on testifying falsely. The article begins by reviewing the development of the professional obligations of candor to the court and loyalty to the client from the first English statute regulating lawyers to the current ABA Model Rules of Professional Conduct. This review demonstrates that for 700 years the duty of candor has trumped the duty of loyalty in cases of prospective client perjury. Second, the article debunks the myth that a rule defining counsel’s response to a client’s planned perjury is necessary to prevent false evidence from infecting the trial. Instead, it is demonstrated that the true purpose of a rule requiring remedial measures by an attorney facing client perjury is to protect the lawyer, not the legal system. Third, the flawed traditional approaches to the perjury dilemma are examined. Lastly, a new proposed “supplemental counsel” approach to the prospective perjury problem is shown to accommodate the interests of the legal system, the legal profession, and the criminal defendant far better than any current approach.
Keywords: Perjury, Model Rules of Professional Conduct, Rule 3.3, Professional Responsibility, Lawyers' Ethics
JEL Classification: K14, K41
Suggested Citation: Suggested Citation
McKoski, Ray, Prospective Perjury by a Criminal Defendant: It's All about the Lawyer (February 24, 2013). Arizona State Law Journal, Vol. 44, 2012. Available at SSRN: https://ssrn.com/abstract=2223601