Friday, April 13, 2007

Freedman on Client Perjury, the Whipsaw of the Lawyer's Duty, and MR 3.3

Posted by Alan Childress

Monroe H. Freedman (Hofstra) has published to SSRN his important new paper on criminal defense and the perjuring client under ABA Model Rule 3.3 and the Fifth and Sixth Amendments.  It is called "Disclosing the Truth About Client Perjury."  The full abstract, well worth considering and including dead-on historical background and the practical result of the Supreme Court's "knowing" versus "belief" standard for Ftfac_mfreedman mandatory disclosure (in Nix v. Whiteside, 1986), is produced beneath the fold; the heart of it is here:

[T]here remains a critical policy issue under Model Rule 3.3, because there are still some occasions when lawyers conclude that their clients are lying and then betray their clients' confidences. Unfortunately, those lawyers 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, no court has ever considered the point that Model Rule 3.3 violates the Fifth and Sixth Amendments to the Constitution. The Supreme Court has held that the Sixth Amendment forbids an agent of the state to pose as a pretended friend of the client, 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 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.

"Disclosing the Truth About Client Perjury" abstract:

More than half a century ago, the ABA recognized that a lawyer's duty to disclose fraud on the court is subordinate to the obligation to preserve a client's confidences. Later, the ABA explained that because the lawyer is an officer of the court, she is required to maintain her client's confidences even in cases of client perjury. Thereafter, relying on tradition as well as substantial policy considerations, the ABA held that for a lawyer to disclose her client's fraud on the court was “unthinkable."

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. In some jurisdictions, this has meant that a lawyer must require her client to testify in narrative and then to omit any reference to the client's false testimony in closing argument. In that way, the lawyer effectively communicates the client's guilt to the jury as well as to the judge.

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” before taking any remedial action. The result is that a defense lawyer may refrain from concluding that her client's testimony is perjurious, despite the fact that the client has told the lawyer inconsistent versions of the truth, and despite the fact that 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 there are still some occasions when lawyers conclude that their clients are lying and then betray their clients' confidences. Unfortunately, those lawyers 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, no court has ever considered the point that Model Rule 3.3 violates the Fifth and Sixth Amendments to the Constitution. The Supreme Court has held that the Sixth Amendment forbids an agent of the state to pose as a pretended friend of the client, 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 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, but there is no one to advise the defendant about his Fifth Amendment privilege before he is trapped by his lawyer into incriminating himself.

Linking the Fifth and Sixth Amendments together, Chief Justice Rehnquist noted that they reflect the Framers' intent to establish an accusatory rather than an inquisitorial system of justice. He added that the Sixth Amendment protects the confidentiality of communications between the accused and his attorney, and that anything the accused says to his attorney is beyond the reach of the prosecution. It is particularly ironic, therefore, that Model Rule 3.3 turns the criminal defense lawyer into the functional equivalent of the prosecutor of her own client, charged with disclosing her client's incriminating confidences at trial.

http://lawprofessors.typepad.com/legal_profession/2007/04/freedman_on_cli.html

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