Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Does a member of the State Bar employed as an attorney in a civil, non-jury trial have a duty to apprise the court if he/she knows that his/her client has committed testimonial perjury?
An attorney employed in a civil, non-jury trial does not have a duty to advise the court that his/her client has committed testimonial perjury; the attorney is precluded from divulging the perjury absent the client's consent. However, the attorney is required promptly to pursue remedial action. If the remedial action fails, the attorney is required to move to withdraw -- but without disclosing any confidence or secret of his/her client. If the attorney is unable to withdraw, the attorney may not use the perjured testimony to support the client's claim.
Business and Professions Code sections 6068, 6128.
Rules 2-111 and 7-107 of the Rules of Professional Conduct of the State Bar of California.
The Committee has been asked whether a member of the State Bar who is engaged in a non-jury civil trial has an affirmative duty to advise the court that the attorney has knowledge that his/her client has committed testimonial perjury.
The Committee's opinion is that, absent the client's consent, the attorney does not have a duty to advise the court, but does have the duty to commence remedial action.
The specific inquiry directed to the Committee postulated that the perjurious testimony was given by the attorney's human client in civil non-jury trial. The attorney was surprised by the testimony which he/she neither solicited nor suborned; he/she did not engage in the prohibited conduct of "knowingly allowing a witness to testify falsely." (People v. Pike (1962) 58 Cal.2d 70, 97, [22 Cal. Rptr. 664, 372 P.2d 656].) The inquirer asks us to assume that disclosure of the perjured testimony to the court would so adversely reflect on the client's credibility that the court could "reasonably be expected to render an adverse decision." The inquirer asks us further to assume that withdrawal from representation would also result in an adverse decision.
Our consideration and opinion are limited by the foregoing facts. We do not address criminal trials, jury trials, depositions, declarations, affidavits, certifications, subornation (procuring) of perjury, or post-trial-discovery of perjury. We do not address the question of an attorney's obligations in such a situation when the perjuring witness was an officer or agent of a non-human client (i.e., a corporation, trust, etc.). And, in accordance with Committee policy, we do not address any issue regarding the attorney's civil or criminal liability. Of course, conviction of a crime involving "moral turpitude" is grounds for attorney discipline. (Bus. & Prof. Code, 6101.) And while there may be criminal implications involving moral turpitude for an attorney in this situation, it is not within our charter to consider them. We treat only the attorney's ethical duties arising from his/her membership in the State Bar.
Perjury is defined in California Penal Code section 118:
"Every person who, having taken an oath that he will testify... truly before any competent [court]... wilfully and contrary to such oath, states as true any material matter which he knows to be false... is guilty of perjury."
Perjury is a felony. (Pen. Code, 126.) The perjurer's lack of knowledge of materiality is no defense to the crime. (Pen. Code, 123.)
Because the inquiry assumes that the attorney "has knowledge" that his/her client has committed perjury, the Committee's analysis assumes the same. This is a portentous assumption.
How does an attorney acquire knowledge that a client has committed perjury?
Technically, one cannot be pronounced guilty of the crime of perjury unless one has been found guilty following a criminal proceeding. Even then, the pronouncement is merely hearsay opinion, except upon a guilty plea. One can admit his/her guilt to perjury, after giving knowing and intelligent waivers of the multitude of rights he/she has. On this ground alone, an attorney may have a justifiable reluctance to conclude he/she has "knowledge" his/her unconvicted client has committed perjury.
Assuming that the attorney is receptive to judging whether his/her client has committed perjury absent a criminal verdict to that effect, how does the attorney decide, on the spot, whether the testimony was a "wilful" statement about a "material" matter and was "false?" The attorney must exercise his/her own subjective judgment about the materiality of testimony given in the midst of trial. Materiality may not become apparent until the close of all testimony. And every attorney has had the disconcerting experience of discovering, after verdict, that the trier of fact wholly disagreed with the attorney about what was and was not material.
But assuming the attorney is satisfied that he/she knows the testimony was material, how does he/she know it was "false?" It may appear false because it does not coincide with the attorney's recollection of what the client previously told him/her. However, the attorney's recollection may be faulty. Or the previous version may have been false and the in-court version may actually be true. It is not a simple matter for an attorney to conclude, during trial, that he/she knows his/her client has committed perjury. And, if the attorney has any doubt about his/her knowledge, he/she should resolve the doubt in favor of his/her client.
The foregoing discussion is not meant to imply that "actual knowledge" of testimonial perjury is the only state of mind which may trigger an attorney's duty to act when he/she hears deceptive testimony by his/her client. We express no opinion about whether a lesser state of certainty in a civil matter (e.g., "a reasonable belief" or "suspicion" that perjury has occurred) might trigger a duty to act. However, "actual knowledge" of a client's testimonial perjury does raise serious questions.
The situation requires the attorney to reconcile his/her duty (1) to his/her client not to imperil the client or his/her case by divulging the client's secrets to the court and (2) not to deceive or consent to deceiving the court.
The first duty arises under Business and Professions Code section 6068, subdivision (e) which provides that it is the duty of a lawyer:
"To maintain inviolate the confidence and at every peril to himself to preserve the secrets, of his client."
The second duty arises under Business and Professions Code section 6128 which provides that an attorney is guilty of a crime who:
"(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party."
This second duty is also reflected in other provisions of the Business and Professions Code and Rules of Professional Conduct.
"It is the duty of an attorney to... maintain the respect due to the courts of justice and judicial officers." (Bus. & Prof. Code, 6068, subd. (b).)
"It is the duty of an attorney to... employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of law or fact." (Bus. & Prof. Code, 6068, subd. (d).)
(See also Rule of Professional Conduct 7-105 [which restates in pertinent part Bus. & Prof. Code, 6068, subd. (d)].)
The first question is whether Business and Professions Code section 6068, subdivision (e) is applicable. The attorney's knowledge of his/her client's testimonial perjury a "secret" of the client which the attorney may not disclose?
In the Committee's opinion 1976-37, we indicated our approval of ABA Disciplinary Rule 4-101(A)'s definition:
"'[S]ecret' refers to information gained in the professional relationship that the client has held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
Presumably, the attorney's knowledge of the testimonial perjury is a product of information gained in the professional relationship. Whether the client has held it inviolate is not significant, because disclosure of the testimonial perjury would doubtless embarrass the client and would, in view of the facts presented to us, be detrimental to him/her: his/her case would be lost. We note also that disclosure would subject the client to potential criminal prosecution for perjury regardless of its effect on his/her civil case. Under these circumstances, it is our opinion that Business and Professions Code section 6068, subdivision (e) is applicable and does prevent the attorney from divulging the testimonial perjury to the court absent his/her client's consent. But that does not end the matter.
For the attorney to proceed with trial without taking further action raises the question whether the attorney has implicitly but intentionally consented to a deception upon the court. (Bus. & Prof. Code, 6128.) It also raises the question whether the attorney s silence and inaction is "consistent with truth" or an attempt to "mislead the judge... by an artifice of false statement of [material] fact." (Bus. & Prof. Code, 6068, subd. (d).)
Active misrepresentations by an attorney to opposing counsel by deliberately failing to state a material fact "falls short of the honesty and integrity required of an attorney at law in the performance of his professional duties." (Coviello v. State Bar (1955) 45 Cal.2d 57, 65-66 [286 P.2d 357].) An attorney's active representations to a judge, accompanied by deliberate failure to disclose a material fact, is similarly reprehensible. But, in this case, the attorney is faced with decisions about how to proceed immediately after his/her discovery of the perjured testimony. The attorney has not yet taken the step of making any further representations while deliberately concealing the perjury.
It is our opinion, under the circumstances of this case, that the attorney may not remain silent and is required to take action to ensure that he/she does not give his/her implicit consent to the deception. Silence and inaction would not be consistent with truth and would constitute, albeit indirectly, an attempt to mislead the judge by an artifice, to wit, the client's false testimony of a material fact. "An attorney who attempts to benefit his/her client through the use of perjured testimony may be subject to criminal prosecution (Pen. Code, 127) as well as severe disciplinary action." (In re Jones (1930) 208 Cal. 240, 242 [280 P.2d 964].) (In re Branch (1969) 70 Cal.2d 200, 210-211, [74 Cal. Rptr. 238, 449 P.2d 174].) But the attorney must speak and act consistently with his/her duties to his/her client.
Opinions of the American Bar Association are not precedential guides for professional conduct of members of the California bar. (CAL 1983-71.) But they are helpful in suggesting alternative courses of conduct. ABA Formal Opinion 287 (June 27, 1953) considered the case of an attorney who secured a divorce for a client who later informed the attorney that he/she had committed perjury in a deposition in securing the divorce. The opinion held that the attorney was precluded from revealing the perjury to the court, but that the attorney should "urge his client to make the disclosure [to the court]" and if he/she refuses to do so "should have nothing further to do with him" but the attorney "should not disclose the facts to the court." As we note below, this conclusion neglects to consider the implications of persuading the client to make disclosure to the court. It is also inapposite because it does not involve perjury committed and known to the attorney in the midst of trial. But it does suggest that withdrawal of representation by the attorney may be an appropriate course of conduct.
The Bar Association of San Francisco Legal Ethics Committee has considered the duties of an attorney whose client refused to disclose the existence of community assets during the course of a domestic relations matter. (SF Opinion 1977-2.) The Committee opined:
"In most cases the client's refusal to disclose the existence of community assets constitutes fraud. However, since the client usually discloses this information in confidence, the attorney is under conflicting duties to maintain the confidentiality of his client's communication and, on the other hand not to suppress the fraud or maintain his deliberate silence. Therefore, the attorney should withdraw from his representation of the client, and his failure to withdraw is a proper subject for disciplinary proceedings."
But this opinion did not address the question of an attorney's obligation to withdraw in the midst of trial. The domestic relations matter had not yet reached the trial stage so that, as a practical matter, withdrawal of representation would not severely prejudice the client. In the instant case, the inquirer has stated, and we accept as true, that withdrawal would result in the client's losing his/her case.
But the attorney may have a duty to withdraw from the case. Rule 2-111(B)(2), Rules of Professional Conduct mandates that he/she withdraw when:
"He knows or should know that his continued employment will result in a violation of these Rules of Professional Conduct [which includes Rule 7-105] or of the other State Bar Act [which includes Bus. & Prof. Code, 6068, 6128]."
The attorney in the instant case should immediately have a private conference with his/her client. The attorney should explain to the client the attorney's opinion that the client has committed testimonial perjury and the basis for that opinion. The client may be able to offer an acceptable explanation of the testimony that would change the attorney's opinion, curing the problem.
If the attorney's opinion is unchanged, the attorney must explain to the client that if the perjured testimony is not corrected or at least removed from the record, the attorney will be duty-bound to make a motion to the court, not disclosing the testimonial perjury unless the client consents, to be allowed to withdraw from the case.
The attorney must explain to the client the full ramifications of attempting to "correct" the perjured testimony. If the client desires to and is allowed to retake the stand, he will presumably testify contrary to his/her earlier testimony. He is then potentially subject to criminal prosecution for perjury. He is also most likely to be subjected to uncomfortable cross-examination about his/her memory and credibility. The "correction" may result in the client's losing his/her case.
The attorney must explain to the client the full ramifications of attempting to remove the testimony from the record. The attorney may seek, without explanation, a stipulation from opposing counsel that the testimony be stricken. If that stipulation is agreed to, the court may strike the testimony, curing the problem. If this effort is unsuccessful, the attorney will have to move that the testimony be stricken, stating whatever grounds exist but not disclosing its perjurious nature absent the client's consent.
If these efforts fail, the attorney is required to move the court to withdraw as counsel without disclosing the perjurious testimony. (Accord, ABA Informal Opinion 1314 (1975).)1
If the court denies the motion to withdraw and orders that the case proceed, the attorney must continue his/her representation (perhaps seeking appellate relief from denial of the motion). But the attorney may not thereafter rely upon or refer to any of the perjured testimony. To do so would constitute a willful misrepresentation by the attorney of matters that he/she knows to be untrue, which could subject the attorney to discipline. (See Bus. and Prof. Code, 6086.7.) The attorney must conduct the balance of the trial as if such testimony had been stricken from the record.
In closing, the Committee notes that a member of the Bar may take precautions prior to trial which would minimize the likelihood of this situation occurring. An attorney would be well-advised to alert his/her client in advance of the above-described ramifications of testimonial perjury to ensure that it does not occur.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 See Uhl v. Municipal Court (1974) 37 Cal. App.3d 526 and People v. Donahoe (1962) 200 Cal. App.2d 17 as examples of cases in which it is suggested that defense counsel may be permitted to withdraw from representation alter making conclusionary statements as to the existence of a conflict of interest.
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