Tuesday, October 2, 2007

A Hobson's Choice

A lawyer appointed to represent a defendant  charged with armed robbery moved to withdraw the day before the scheduled trial, stating he could "no longer competently and professionally represent [the defendant]." The lawyer then told the court that the client wished to testify in a manner in the lawyer's opinion would be false. The judge denied the motion to withdraw and advised the client that he would be required to proceed without counsel if he testified. The defendant did not testify and was convicted.

On appeal, the North Carolina Court of Appeals held that the lawyer must know, rather than believe, that the expected testimony would be false. The defendant was improperly forced to choose between the right to testify and the right to counsel. The error was not harmless and the defendant was granted a new trial. (Mike Frisch)


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The Kentucky Supreme Court recently addressed this same issue. In Brown v. Commonwealth of Kentucky, 226 S.W.3d 74 (Ky. 2007), the Kentucky Supreme Court
acknowledged the lawyer's ethical obligation under Rule 3.3 by stating that the attorney must bring the conflict to the trial court's attention. To do so the lawyer must make "[a] clear statement of the nature of the problem" but need not give a "detailed evidentiary statement of the disagreement."

The lawyer should proceed in this way only if she "in good faith" has "a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. "

The Court directed the attorney to follow the instruction of the trial court. The Court noted that allowing the defendant to testify in narrative form is acceptable, with the lawyer present to provide representation such as objections to cross-examination and with regard to matters not involving the perjury.

The Court found that in the matter before it the criminal defendant was deprived of the right to counsel because the defendant's lawyer left the courtroom during the defendant's testimony and thus could not make objections with regard to the cross-examination.

Posted by: Grace Giesel | Oct 2, 2007 10:46:22 AM

Talk about your standards that are difficult, if not impossible, to meet! I'd say this just about eliminates the possibility of withdrawing on this ground.

Posted by: Greg May | Oct 2, 2007 11:05:22 AM

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