Prospective Client Perjury: A Lawyer’s Dilemma

By Hal R. Lieberman

[Originally published in NYPRR December 2000]

One of the most confounding ethical dilemmas facing a criminal defense lawyer is the prospect that her client intends to testify falsely. Although the prohibition against knowingly presenting perjurious testimony is seemingly unambiguous [see, DR 7-102 (a)(4) of the New York Code of Professional Responsibility], the lawyer’s problem is how to proceed given competing rights and duties: the defendant’s right to effective assistance of counsel; the defendant’s right to testify; the duty of confidentiality; the duty of candor; the obligation not to knowingly assist a client in criminal or fraudulent conduct.

In People v. DePallo [App.Div., 2d Dept. (10/23/2000)], the appellate court cited DR 7-102(a)(4) and then squarely confronted the question whether defense counsel’s response to prospective client perjury was professionally proper and satisfied constitutional requirements. The defendant was accused of robbery and murder. At the time of his arrest, he made various incriminating admissions; additionally, his blood and fingerprints were found at the scene of the crime. Defense counsel, aware of his client’s intent to take the stand and testify falsely, advised the defendant that he did not have to testify but that if he chose to do so, his duty was to testify truthfully. But the client was undeterred and counsel then informed the Court (at sidebar) that his client wanted to testify and that he anticipated the testimony would be false. The Court confirmed the client’s insistence on testifying by questioning the defendant.

Thereafter, with the Court’s tacit permission, defense counsel elicited the defendant’s direct testimony in what is called the free “narrative” form — that is, counsel asks the client to tell the fact-finder “what happened” or “your version of events” without any guidance or direct examination by counsel. In this case, the defendant testified that he was at home on the evening of the crime, and that his prior admissions to the police had been induced by false promises that he could return home once he made the statements at issue.

After both sides rested, defense counsel met with the Court ex parte. The Court then held a charge conference in the presence of all parties. During his summation, defense counsel did not argue based upon the defendant’s trial testimony. The defendant was convicted.

Two principal issues were presented on appeal. Was the defendant deprived of effective assistance of counsel by the conduct of his attorney? Was the defendant improperly denied his right to be present at a material stage of the trial?

In upholding the conviction, the appellate court stated, as to the issue of effective assistance of counsel, that “a defendant’s Sixth Amendment right to the assistance of counsel does not include the right to compel counsel to knowingly assist or participate in the presentation of perjured testimony [citing Nix v. Whiteside, 475 U.S. 157 (1986)].” Furthermore, the appellate court expressly approved of the way in which defense counsel had handled the situation:

In this case, the defense counsel zealously represented his client while maintaining his ethical obligations. He informed the defendant of his ethical obligations and, when it became apparent that the defendant would persist in giving perjured testimony, he disclosed this fact to the court in an effort to ensure that any trial procedure would safeguard the defendant’s right to testify and, simultaneously, prevent the defense counsel’s participation in the fraud (citations omitted).

The court also rejected the argument that the defendant was deprived of his right to be present at a material stage of the trial [CPL §260.20]. The court concluded that “the defendant’s presence at the ex parte conference would not have provided him with a meaningful opportunity to affect the issue before the court, which was the propriety of the defense counsel’s past and future conduct regarding the presentation of perjured testimony to the jury.”

Did defense counsel in fact get it “ethically right”? And were the court’s responses to counsel’s “advocacy” consistent with precedent and professional norms? The answers are not without debate. Neither the New York Model Code nor the ABA Model Rules expressly addresses the issue of prospective client perjury, although, as noted, both agree that it is improper to knowingly aid in the presentation of false evidence. In 1998, the ABA opined, in Formal Opinion 98-412, that “when a lawyer knows that her client intends to make a false statement to the court, the lawyer must advise the client against such a course of action. If the client insists on presenting false information, then the lawyer must withdraw from the representation and, if withdrawal is not permitted, must make disclosure to the court of the falsity of the information.”

Unquestionably, if a defense lawyer “knows” that her client intends to offer perjurious testimony, then she has an ethical duty to remonstrate with the client not to commit perjury, as did counsel in DePallo. But must the lawyer then seek to withdraw if remonstration fails? And must the lawyer, if withdrawal is not permitted (and it generally is not allowed in New York just before or during trial), disclose the prospect of false testimony? How should the lawyer handle the trial?

Is Withdrawal the Answer?

Some courts have held that a lawyer should seek to withdraw if she is unable to talk the client out of committing perjury [see, People v. Johnson, 72 Cal. Rptr. 2d 805 (Ct. App.), cert. denied, 119 S. Ct. 262 (1998)]. The theory of these cases is that a lawyer simply cannot become a potential party to fraud. However, the New York view, as reflected in DePallo, is that withdrawal does not resolve the problem and may even make it worse from the perspective of the administration of justice:

[S]ubstitution of… counsel, unaware of the possibility of perjury, may overtly facilitate, or appear to condone, a fraud upon the court. Such substitution procedures would effectively cloak the problem; however, this ostrich-like approach would do little to resolve it [People v. Salquerro, 170 Misc.2d 155, 157–158].

Must Lawyer Disclose?

Given that withdrawal is not favored, at least in New York, is disclosure of prospective client perjury ethically appropriate? Again, there are two schools of thought. In DePallo, which reflects the majority view, the appellate court praised counsel’s conduct in informing the trial judge in advance of his client’s intention to lie. [See, Nix v. Whiteside, supra, appropriate to threaten client with disclosure; U.S. v. Litchfield, 959 F. 2d 1514 (10th Cir. 1992), criminal defense lawyer who informed court of probable perjury by defendant not guilty of unethical behavior and did not create conflict of interest; ABA Formal Op. 87-353 (1987), “If the lawyer does not offer the client’s testimony and, on inquiry by the court into whether the client has been fully advised as to the client’s right to testify, the client states a desire to testify, the lawyer may have no other choice than to disclose to the court the client’s intention to testify falsely.”]

The contrary view is that disclosure compromises the lawyer’s ethical duties of loyalty and confidentiality, and negates the possibility that the client may later decide not to testify or to testify truthfully (as ultimately happened in Nix v. Whiteside). [See, People v. Johnson, supra, criticizing disclosure; see also, Hazard, “The Client Fraud Problem as Justinian Quartet: An Extended Analysis”, 25 Hofstra L. Rev. 1041 (1997), disclosure is “futile or counterproductive.”]

Apart from the ethics of disclosure, a defense lawyer who is not permitted to withdraw despite potential client perjury faces the related practical issue of how exactly to handle the defendant’s testimony at trial. Some courts, including the court in DePallo, have approved the “narrative testimony” approach. As described above, the narrative method allows the lawyer to elicit the client’s story without engaging in the usual direct examination. The client testifies without interruption in narrative fashion, and defense counsel does not rely on the false testimony during summation.

The claimed advantage of the narrative approach is that it accommodates the conflicting interests of the defendant’s constitutional right to testify and the attorney’s obligation not to “participate” in or foster perjury. The disadvantage is that the lawyer, albeit passively, nonetheless assists in the client’s effort to mislead the factfinder and perpetrate a fraud, an unseemly position. Thus, some commentators have raised objections to the narrative approach because it fails in all of its objectives: it allows the defendant to offer false testimony; it allows the lawyer to breach her client’s confidentiality; and it does not avoid signaling to the jury what is really going on. [See, e.g. ABA Formal Op. 87-353 (1987); see also, Freedman, “The Perjury Trilemma,” in Understanding Lawyer’s Ethics, pp. 109–111(1990).]

It becomes readily apparent that the ethical prohibition against knowingly presenting false testimony is only a starting point in the context of prospective perjury. The practical road map for counsel on how to proceed when a criminal defendant intends to lie on the witness stand is far more complex. Clearly, there is no consensus among the courts or among expert commentators. The DePallo decision reflects one ethically acceptable but nevertheless controversial resolution of this professional dilemma.

Hal. R. Lieberman, a partner in the NY office of Edwards &Angell, LLP, was formerly Chief Counsel to the Departmental Disciplinary Committee and teaches legal ethics at Brooklyn Law.

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