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C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

Cal. Prac. Guide Prof. Resp. Ch. 8-C

California Practice Guide: Professional Responsibility

Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)

Chapter 8. Advocacy And Representation

C. Restrictions On Advocacy In Court Proceedings

2. [8:180] Prohibition on Presenting Perjured Testimony: Neither the State Bar Act nor the CRPC specifically mentions use of perjured testimony. Rather, they simply state lawyers must employ “such means only as are consistent with truth.” [Bus. & Prof.C. § 6068(d); CRPC 5–200(A) (emphasis added)]

offer evidence that the lawyer

a. [8:181] Compare—ABA Model Rules: “A lawyer shall not knowingly knows to be false.” [ABA Model Rule 3.3(a)(3)]

In addition, the ABA Model Rules require a lawyer who has offered false material evidence to take reasonable remedial measures when he or she becomes aware of its falsity. [ABA Model Rule 3.3(a)(3)]

(1) [8:182] “Knowing” use: Both the ABA Model Code (DR 7–102(A)(4)) and the ABA Model Rules (3.3(a)(3)) preclude “knowing” use of perjury. “Knowing” means actual knowledge that the witness intends to lie on the witness stand, although that knowledge may be inferred from the circumstances. [ABA Model Rules, Terminology ¶ 5; see Orange County Bar Ass’n Form.Opn. 2003–01 (adopting “actual knowledge” standard)]

b. [8:183] Duty to discourage prospective perjury: An attorney must attempt to dissuade the client from

committing perjury: “(A)t a minimum the attorney’s first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct.” [Nix v. Whiteside (1986) 475 US 157, 169, 106 S.Ct. 988, 995; People v. Johnson (1998) 62 CA4th 608, 621, 72 CR2d 805, 811– 812“The persuasion solution, when it succeeds, is the ideal solution since it involves neither the presentation of perjured testimony nor disclosure of client confidences”]

(1) [8:183.1] Applies equally to counsel in civil and criminal cases: The duty to discourage prospective perjury applies to all lawyers: “No lawyer, whether prosecutor or defense counsel, civil or criminal, may knowingly present lies to a jury and then sit idly by while opposing counsel struggles to contain this pollution of the trial.” [United States v. LaPage (9th Cir. 2000) 231 F3d 488, 492criminal conviction overturned where prosecutor failed to correct prosecutorial testimony known to be false; see also 8:193]

(2) [8:184] Successful persuasion not ineffective assistance: Successfully persuading a client not to commit perjury in a criminal case does not constitute ineffective assistance of counsel. [Nix v. Whiteside, supra, 475 US at 175–176, 106 S.Ct. at 998–999; People v. Johnson, supra, 62 CA4th at 621, 72 CR2d at

(3) [8:185] Compare—prohibiting client from testifying: In criminal cases, refusing to permit a client to testify where the client has voiced the intent to commit perjury can result in denial of a defendant’s constitutional right to testify. [People v. Johnson, supra, 62 CA4th at 626, 72 CR2d at 815]

C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

And, precluding a criminal defendant’s testimony “essentially substitutes defense counsel for the jury as the judge of witness credibility; it puts the determination of whether the defendant is telling the truth or a lie into the hands of defense counsel.” [People v. Johnson, supra, 62 CA4th at 626, 72 CR2d at 815; but see People v. Jennings (1999) 70 CA4th 899, 907–909, 83 CR2d 33, 37–39defense counsel’s limited direct examination of defendant based on fear of perjury does not constitute ineffective assistance]

c. [8:186] Options where client persists in testifying falsely: If the lawyer is unsuccessful in persuading a client not to commit perjury, the following options should be considered:

(1) [8:187] Withdrawal from representation: One case holds that withdrawal is mandatory where the client persists in testifying falsely. [People v. Brown (1988) 203 CA3d 1335, 1340, 250 CR 762, 764, fn. 1“If the client remains adamant, the attorney must make a motion to withdraw so as to not give implied consent to the use of perjurious testimony” (emphasis added); see also Cal. State Bar Form.Opn. 1983–74]

Brown, supra, reasons that withdrawal is consistent with the requirements of the State Bar Act and CRPC. [People v. Brown, supra, 203 CA3d at 1339, 250 CR at 764; see also Bus. & Prof.C. §§ 6128(a) (criminal

liability for deceit, collusion, delay of suit) & 6068(d) (duty to employ means consistent with truth); CRPC

asserting

”; CRPC 5–200(B) (prohibition on misleading judge by

3–700(B) (1)withdrawal mandatory where attorney “knows or should know that the client is

a position in litigation without probable cause artifice or false statement)]

Cross-refer: Attorney withdrawal is discussed in detail at ¶ 10:20 ff.

(a) [8:187.1] Problematic application in criminal cases? Mandatory withdrawal has been criticized in

criminal cases because “(t)hat approach could trigger an endless cycle of defense continuances and motions to withdraw as the accused informs each new attorney of the intent to testify falsely. Or the accused may be less candid with his new attorney by keeping his perjurious intent to himself, thereby facilitating the presentation of false testimony.

Lastly, there is the unfortunate possibility that the accused may find an unethical attorney who would knowingly present and argue the false testimony. Thus, defense counsel’s withdrawal from the case would not really solve the problem created by the anticipated perjury but, in fact, could create even more problems.“ [People v. Gadson (1993) 19 CA4th 1700, 1710, 24 CR2d 219, 224, fn. 5; People v. Johnson (1998) 62 CA4th 608, 623, 72 CR2d 805, 813]

(b) [8:188] Where withdrawal motion denied: Where a withdrawal motion is denied, the attorney’s

options depend on the type of case involved:

1) [8:188.1] Criminal cases: Because a criminal defendant has a constitutional right to testify (even over defense counsel’s objection), counsel may be required to call the defendant as a witness knowing he or she intends to give false testimony. In those cases, counsel is limited to allowing the defendant to testify in a narrative manner; i.e., counsel may not elicit the testimony, or rely on it in closing argument. [People v. Gadson, supra, 19 CA4th at 1710–1711, 24 CR2d at 224–225]

This is now the most favored option for dealing with anticipated client perjury in criminal cases. See 8:189 ff.

2) [8:188.2] Civil cases: Unlike criminal defendants, civil clients have no constitutional right to testify. And, as “captain of the ship,” the attorney controls which witnesses to call and evidence to present. However, the client may be called to testify as an adverse witness. [Ev.C. § 776 (examination

C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

of adverse party or witness)]

In such cases, the attorney may not rely on or refer to the perjured testimony, but must conduct the balance of the trial as if such testimony had been stricken from the record. [Cal. State Bar Form.Opn.

1983–74]

(2) [8:189] Permitting client to testify in narrative manner: The emerging view supports the narrative approach where “the attorney calls the (client) to the witness stand but does not engage in the usual question and answer exchange.

Instead, the attorney permits the (client) to testify in a free narrative manner. In closing arguments, the attorney does not rely on any of the (client’s) false testimony.” [People v. Johnson (1998) 62 CA4th 608, 624, 72 CR2d 805, 811–813 (parentheses added); see Orange County Bar Ass’n Form.Opn. 2003–01]

(a) [8:189.1] Favored approach in criminal cases: The narrative approach is now favored in criminal cases:

“Of the various approaches, we believe the narrative approach represents the best accommodation of the

competing interests of the defendant’s right to testify and the attorney’s obligation not to participate in

the presentation of perjured testimony

reconciled the competing interests

1046, 1069, 108 CR2d 409, 426 & fn. 13)use of narrative testimony not prohibited by U.S. Supreme Court or CRPC]

in this situation”; see also People v. Guzman (1988) 45 C3d 915,

1) [8:189.2] Not ineffective assistance: Use of the narrative approach in criminal cases does not constitute ineffective assistance of counsel. [United States v. Omene (9th Cir. 1998) 143 F3d 1167, 1171–1172; People v. Guzman, supra, 45 C3d at 941–946, 248 CR at 481–485; People v. Gadson, supra, 19 CA4th at 1710–1711, 24 CR2d at 224–225]

Cross-refer: Ineffective assistance of counsel claims are discussed at ¶ 6:700 ff.

=> [8:189.3] PRACTICE POINTER: Although permitting a defendant to testify in narrative fashion is the favored approach, there are considerations that should clearly be explained before the client makes the decision to testify:

• In a criminal case, the client has the constitutional right not to testify and no adverse inferences can be drawn from exercising that right;

• The client’s testimony will be subject to the rules of evidence and he or she may be ill-equipped to handle opposing counsel objections;

• If the client has any prior felonies bearing on his or her credibility, they may be used against him or her for impeachment; and

• As the client’s attorney, you have an ethical obligation not to argue to the jury anything in the client’s testimony you believe to be untrue. [8:190] Reserved.

C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

d. [8:191] Duty to correct past perjury? An attorney should counsel the client to rectify past perjury.

If unsuccessful, the attorney should withdraw from the case (without disclosing the reasons for withdrawal; see 10:100 ff.). [Los Angeles Bar Ass’n Form.Opn. 305 (1968); compare ABA Model Rule 3.3(a)(3) and Comments (5)-(11)—lawyer who discovers falsity of material evidence offered by client or witness called by lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal; and New Hampshire Bar Ass’n Ethics Comm. Opn. 2008–09/3—lawyer who learns of client’s false material testimony has ethical duty to disclose the falsity to the tribunal if client is unwilling to do so]

• [8:191.1] During a civil nonjury trial, Attorney discovers Client has given perjurious testimony. Attorney concludes disclosing the testimony would likely result in a decision against Client. Attorney further assumes that withdrawal would result in an adverse decision.

If Attorney has actual knowledge of Client’s perjury, Attorney is required to take steps to ensure he or she does not give implicit consent to the deception. First, Attorney should permit Client to provide Attorney with an explanation of the testimony—which may change Attorney’s opinion and solve the problem.

If Attorney’s opinion is unchanged, Attorney must explain to Client that unless the perjured testimony is corrected or removed from the record, Attorney will be required to withdraw from representation.

Attorney must also explain the ramifications of attempting to rectify perjured testimony. For example, if Client retakes the stand and testifies contrary to earlier testimony, Client is subject to criminal prosecution for perjury (Pen.C. §§ 118, 123).

As an alternative, Attorney may seek a stipulation from opposing counsel (without explanation) striking the testimony. Attorney could also move that the testimony be stricken, stating whatever grounds exist without disclosing the perjurious nature of the testimony without Client’s consent.

If these alternatives fail, Attorney is required to seek permission to withdraw from representation without disclosing the perjurious testimony. [Cal. State Bar Form.Opn. 1983–74]

(1) [8:192] Compare—perjury by former client: An attorney is not obligated to persuade a former client to rectify past perjury; nor may he or she disclose it to the client’s current counsel, the court, opposing counsel or the State Bar. [Los Angeles Bar Ass’n Form.Opn. 386 (1980)]

(2) [8:193] Compare—criminal prosecutor’s affirmative duty to correct perjury: See discussion at

8:632.2.

=> [8:193.1] PRACTICE POINTERS: An attorney who discovers his or her client has testified falsely should advise the client of the penalties for perjury. [New Hampshire Bar Ass’n Ethics Comm. Opn. 2008–

09/3]

Also, the attorney should put in writing his or her advice to the client to remedy the perjury in view of the potential for a “falling out” between the attorney and client. [New Hampshire Bar Ass’n Ethics Comm. Opn. 2008–09/3]

e. [8:194] Attorney liability for presenting false testimony: The attorney is the “captain of the ship” with regard to presentation of evidence (at least in civil proceedings) and risks liability accordingly.

(1) [8:195] Criminal offense: It is a crime (subornation of perjury) to “willfully procure another person to commit perjury.” [Pen.C. § 127 (emphasis added)]

C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch. 8-C

Comment: This is a specific intent crime and would apply only where the attorney is the instigator of the perjured testimony.

(2) [8:196] Contempt: An attorney who attempts to or does mislead the court is guilty of direct contempt:

“The presentation to a court of a statement of fact known to be false presumes an intent to secure a

attorney by which he successfully misleads the court, but the presentation of a statement of fact, known by him to be false, which tends to do so“]

determination based upon it

is not the act of an

Cross-refer: Contempt is discussed at ¶ 8:566 ff.

(3) [8:197] Discipline: Misleading the court is an “act of moral turpitude” and cause for discipline. [Bus. & Prof.C. § 6106attorney’s acts of moral turpitude are cause for discipline; In re Jones (1971) 5 C3d 390, 400–401, 96 CR 448, 454–455convictions for subornation of perjury and offering false evidence; Worth

v. State Bar (1978) 22 C3d 707, 711, 150 CR 273, 275–276attorney disbarred for falsifying evidence in State Bar disciplinary proceeding] [8:198–209] Reserved.

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