Ethics Question of the Month - December 2018
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I Know What You Did
Lawyer A represents Client X in a family law case. Client X has told Lawyer A he has struggled with substance abuse and continues to use cocaine occasionally.
Client X’s wife had similar substance abuse issues, but she appears to be in sustained recovery. Client X wants primary custody and appears reconciled to admitting his occasional cocaine use and seeking treatment.
The wife’s lawyer takes Client X’s deposition and asks him if he still uses cocaine. Client X denies any cocaine use since the couple separated. Lawyer A asks no questions at the deposition, but later confronts his client about his denial of current drug use. Client X promises not to lie about his cocaine use again. Lawyer A does nothing further, and Client X does not correct his deposition testimony.
At trial, Lawyer A doesn’t raise cocaine use, but does ask Client X to generally tell the jury why he believes that he is a fit parent. Lawyer A assumes that Client X will avoid talking about drug use, but Client X again says he has not used anything since the couple’s break-up. Hoping that his client won’t continue to perjure himself, Lawyer A drops the subject and quickly wraps up his direct examination.
On cross-examination, opposing counsel is ready to pounce but doesn’t have any impeachment evidence that Client X is lying. He can’t shake Client X’s repeated denials of drug use since the couple’s separation.
The jury awards primary custody to Client X at the end of the first week of trial. The trial will continue the following week with the property division tried to the Court without a jury. Over the weekend, Lawyer A confronts his client and insists that he not further perjure himself during the second week.
Which is Lawyer A’s best course of action?
A. Lawyer A has acted appropriately in preserving what he learned from privileged conversations with Client X and should do nothing to undermine the attorney-client relationship.
B. Lawyer A should withdraw before the second week of trial so that he can avoid disclosing his client’s perjury when court resumes.
C. Lawyer A cannot withdraw, but does not need to take further action as long as he doesn’t affirmatively encourage Client X to lie.
D. Lawyer A cannot withdraw and must take steps to address his client’s lies, including disclosure to the court of the true facts.
Rule 3.03 of the Texas Disciplinary Rules of Professional Conduct states, in part:
(a) A lawyer shall not knowingly:
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.
Lawyer A has two obligations with respect to his direct examination of Client X at trial:
First, once Client X lied under oath in response to a question that Lawyer A asked, Lawyer A was obligated to counsel Client X to correct his false testimony.
Second, if Client X refuses to correct his false testimony, Lawyer A is ethically obligated under Rule 3.03 to correct the record, even if that means implicating Client X in perjury.
With respect to Client X’s perjury during his deposition and during cross-examination by opposing counsel at trial (as opposed to his direct examination), Lawyer A has a narrower ethical obligation under Rule 3.03. Since Lawyer A did not ask questions during Client X’s deposition that elicited his perjury and opposing counsel asked further questions that elicited perjury during his cross-examination, those instances obligated Lawyer A only to advise Client X to correct his false testimony; however, since Lawyer A did not elicit the false testimony by asking those questions, he is not obligated to correct the testimony, even if Client X refuses.
How long does Lawyer A have this obligation? Under Rule 3.03, “until remedial legal measures are no longer reasonably possible.” Under our scenario, the trial court still has jurisdiction over this case and Lawyer A’s obligation exists that long. Therefore, if Lawyer A has learned of his client’s perjury, Lawyer A elicited or offered the false evidence, and the tribunal still has jurisdiction, then Lawyer A’s ethical obligations under Rule 3.03 arise. Lawyer A cannot wait for the clock to run out. The best answer is D.
This Rule may come as a surprise to lawyers who assume that the attorney-client privilege requires silence about a client’s perjury as long as the lawyer did not encourage the client to lie under oath. The old ABA rule permitted a lawyer to withdraw in lieu of disclosing a client’s perjury. However, since 1990 the Texas Rule has not permitted withdrawal alone to solve this problem. The lawyer must take remedial measures, including disclosure of the true facts.