Opinion 04-1
FLORIDA BAR ETHICS OPINION
OPINION 04-1
June 24, 2005
Advisory ethics opinions are not binding.
A lawyer whose client has repeatedly stated that the client will commit perjury must
withdraw from the representation and inform the court of the client’s intent to lie under
oath. When the withdrawal and disclosure occur depends on the circumstances and may
be made ex parte in camera if permitted by the court.
Note: This opinion was approved by The Florida Bar Board of Governors on
October 21, 2005.
RPC:
Statutes:
4-1.2(d), 4-1.6, 4-1.7, 4-1.16, 4-3.3
837.02 and 777.011, Florida Statutes
A member of The Florida Bar has inquired about the appropriate course of
conduct in the representation of a client who has stated his intent to commit perjury at his
upcoming criminal trial. The client has repeatedly expressed the client’s intent to
commit perjury and, despite the lawyer’s repeated warnings, insists upon testifying
falsely. The client has been warned that the lawyer must and will advise the court if a
fraud is made upon the court. The lawyer has questioned the lawyer’s ethical obligations
under this scenario. This inquiry addresses the circumstances when a lawyer definitely
knows that the client intends to commit perjury. This is distinct from the many other
situations where the lawyer may suspect but does not know that the client intends to
commit perjury. This opinion only addresses this specific inquiry.
Many ethics rules relate to this inquiry. Rule 4-1.2(d), Rules Regulating The
Florida Bar, prohibits a lawyer from assisting a client in conduct the lawyer knows or
reasonably should know is criminal or fraudulent. Rule 4-1.6, the confidentiality rule,
which is very broad, applies “to all information relating to the representation, whatever
its source.” Comment, Rule 4-1.6. However, there are exceptions to the confidentiality
rule. Rule 4-1.6(b)(1) requires a lawyer to reveal information necessary to prevent a
client from committing a crime. While interpretation of statutes is beyond the scope of
an ethics opinion, it appears that it is a crime for a lawyer to permit or assist a client or
other witness to testify falsely. See Florida Statutes §§ 837.02 and 777.011.
The “Candor Towards the Tribunal” rule, Rule 4-3.3, provides in pertinent part:
(a) False Evidence; Duty to Disclose. A lawyer shall not
knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the client;
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(4) permit any witness, including a criminal defendant, to offer
testimony or other evidence that the lawyer knows to be false. A lawyer
may not offer testimony that the lawyer knows to be false in the form of a
narrative unless so ordered by the tribunal. If a lawyer has offered
material evidence and thereafter comes to know of its falsity, the lawyer
shall take reasonable remedial measures.
(b) Extent of Lawyer’s Duties. The duties stated in paragraph (a)
continue beyond the conclusion of the proceeding and apply even if
compliance requires disclosure of information otherwise protected by rule
4-1.6 [concerning lawyer-client confidentiality]. [Emphasis added.]
A lawyer’s obligation to make disclosures under Rule 4-3.3 is triggered when the
lawyer knows that a client or a witness for the client will make material false statements
to a tribunal. Under the facts presented, the lawyer knows the client will make a
misrepresentation to the court because the client has repeatedly expressed his intent to
commit perjury.
The comment to Rule 4-3.3 provides the following guidance:
If a lawyer knows that the client intends to commit perjury, the
lawyer’s first duty is to attempt to persuade the client to testify truthfully.
If the client still insists on committing perjury, the lawyer must threaten to
disclose the client’s intent to commit perjury to the judge. If the threat of
disclosure does not successfully persuade the client to testify truthfully,
the lawyer must disclose the fact that the client intends to lie to the
tribunal and, per 4-1.6, information sufficient to prevent the commission
of the crime of perjury.
A lawyer is required to reveal information that is necessary to prevent a client
from committing a crime, including the crime of perjury. Rule 4-1.6(b)(1), Rules
Regulating The Florida Bar. The comment to Rule 4-1.6 provides:
It is admittedly difficult for a lawyer to ‘know’ when the criminal
intent will actually be carried out, for the client may have a change of
mind.
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Where practical the lawyer should seek to persuade the client to take
suitable action. In any case, a disclosure adverse to the client’s interest
should be no greater than the lawyer reasonably believes necessary to the
purpose.
If the lawyer knows that the client will testify falsely, withdrawal does not fulfill
the lawyer’s ethical obligations, because withdrawal alone does not prevent the client
from committing perjury. Rather, a lawyer must disclose to the court a client’s intention
to commit perjury. Timing of the disclosure may vary based on the facts of the case and,
in some cases, may be made ex parte in camera. Ultimately, the method of disclosure is
subject to the discretion of the court. This disclosure causes a conflict of interest between
the lawyer’s ethical obligation to disclose and the client’s interest. Rule 4-1.7, Rules
Regulating The Florida Bar. Due to the conflict, the lawyer must move to withdraw.
Rule 4-1.16(a), Rules Regulating The Florida Bar. Notwithstanding good cause to
withdraw, if the court requires the lawyer to continue the representation, the lawyer must
comply with the court’s order. Rule 4-1.16(c), Rules Regulating The Florida Bar. A
lawyer may offer the client’s testimony in the narrative only if the court orders the lawyer
to do so. Rule 4-3.3(a)(4), Rules Regulating The Florida Bar.
In the event that the client does not give advance notice to the lawyer prior to
testifying falsely, Rule 4-3.3(a)(2) and the comment require the lawyer to take reasonable
remedial measures to rectify the fraud. The comment to Rule 4-3.3 states:
When false evidence is offered by the client, however, a conflict may
arise between the lawyer’s duty to keep the client’s revelations
confidential and the duty of candor to the court. Upon ascertaining that
material evidence is false, the lawyer should seek to persuade the client
that the evidence should not be offered or, if it has been offered, that its
false character should immediately be disclosed. If the persuasion is
ineffective, the lawyer must take reasonable remedial measures.
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If perjured testimony or false evidence has been offered, the
advocate’s proper course
ordinarily is to remonstrate with the client
confidentially. If that fails, the advocate should seek to withdraw if that
will remedy the situation....[I]f withdrawal will not remedy the situation or
is impossible and the advocate determines that disclosure is the only
measure that will avert a fraud on the court, the advocate should make
disclosure to the court. It is for the court then to determine what should be
done-making a statement about the matter to the trier of fact, ordering a
mistrial, or perhaps nothing.
In conclusion, when a lawyer is representing a criminal client who has stated an
intention to commit perjury, the lawyer is obligated, pursuant to Rules 4-1.2(d), 41.6(b)(1) and 4-3.3(a)(4), to disclose the client’s intent to the court. If the lawyer is not
given advance notice of the client’s intent to lie, and the client offers false testimony,
then the lawyer must convince the client to agree to disclosure and remediation of the
false testimony; failing that, the lawyer must disclose to the court anyway. Absent client
consent, the lawyer’s disclosure of the client’s false testimony or intent to offer false
testimony will create a conflict between the lawyer and the client requiring the lawyer to
move to withdraw from representation pursuant to Rule 4-1.16(a). If the court requires
the lawyer to remain in the case, despite good cause for withdrawal, the lawyer must do
so. Rule 4-1.16(c). It is then up to the court to determine what should be done with the
information. This opinion is limited to the situation presented when a lawyer knows that
his or her client is going to commit perjury. This opinion does not address the situation
when a lawyer merely suspects but does not know that the client intends to commit
perjury.