Wednesday, March 12, 2008

Freedman on Client Perjury and the Hard Questions

Posted by Alan Childress

Monroe Freedman (Hofstra) has posted to SSRN his article, "Getting Honest About Client Perjury," as published in vol. 21 of Georgetown Journal of Legal Ethics (2008).  The abstract is:

Chief Justice Warren Burger and two other federal judges initiated disbarment proceedings against me in 1966. The charge was that, in a lecture to a group of  lawyers, I had expressed opinions that "appear to be in conflict with the Canons of Professional Ethics of the American Bar Association." The offensive opinions related to the criminal defense lawyer's conflicting ethical obligations in dealing with client perjury, based on requirements in the Canons of Professional Ethics.
While the disbarment proceedings were pending, the lecture became an article: The Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions. After four months of hearings and deliberations, the charges were dismissed. As shown below, however, the controversy continues four decades later, principally because of serious misunderstandings about of the constitutional and policy issues involved.

Part I of this article relates the beginning of the controversy over client perjury in 1966. The discussion sets out the trilemma created by three ethical obligations that are imposed upon the criminal defense lawyer. The first ethical obligation is that the lawyer learn everything possible about a client's case. The second obligation is that the lawyer keep knowledge about the client's case confidential except to advance the client's interests. The third obligation is that the lawyer reveal the client's confidential information to the court if doing so should become necessary to expose what the lawyer knows to be perjurious testimony by the client.

In a lecture to a group of lawyers in a Criminal Trial Institute, and in a subsequent article, I favored the view that the lawyer who knows that the client intends to lie on the witness stand should make good faith efforts to dissuade the client from committing the perjury, but, if unsuccessful in those efforts, the lawyer should maintain confidentiality and should present the client's testimony at trial in the ordinary way.

Part II of this article explains that the view that I expressed in the lecture and in the article reflected the traditional resolution of the perjury trilemma by the American bar. Part II(A) notes that the ABA Canons of Professional Ethics (1908) imposed conflicting obligations of client confidentiality and of candor to the court. Resolving the conflict in formal opinions, the American Bar Association Standing Committee on Ethics and Professional Responsibility affirmed that a lawyer's duty to preserve a client's confidences takes precedence over candor to the court.

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