criminal defense attorney facing prospective client perjury, The
The American Bar Association (ABA) Model Rules of Professional Conduct (Model Rules) create an obligation for lawyers to disclose to the tribunal when perjured testimony has been or may be introduced.1 The problems of identifying such perjury and the obligations that arise from Model Rule 3.3 are varied and complex.2 Client perjury puts the criminal defense attorney in an unenviable position. It creates a tension between the duty of zealous advocacy and the duty of candor toward the court.3
Dean Monroe Freedman famously presents this problem in terms of the “perjury trilemma.”4 Dean Freedman notes that lawyers face three obligations in performance. The first two stem from the important, almost sacred, attorneyclient relationship. First, there is the duty to investigate a client’s case. As Dean Freedman argues, “in order to give clients the effective assistance of counsel to which they are entitled, lawyers are required to seek out all relevant facts.”5 Second, there is the obligation of zealous client advocacy.6 These are potentially at odds with the third duty, the obligation of lawyers to the court. Lawyers are officers of the court and hold certain responsibilities as such.7 They have specific requirements imposed upon them in such a capacity that cannot be forsaken.8
disclosure of potential client perjury threatens the relationship between an individual accused of a crime and their one and only representative in the criminal justice system. “[T]o convert the defendant’s only champion into yet another member of the state’s legions seems an unnecessary and offensive step.”9 Dean Freedman argues that only two of these three obligations can be met at any given time.10 So which of the three should go? In our adversarial system, the relationship between a criminal defense attorney and her client is special. The first and second obligations are essential for zealous advocacy. 11 The third, however, is essential for lawyers as participants in the judicial system as a whole.12 This creates a complicated and difficult situation for a criminal defendant attorney.
This Note will discuss some of the varied commentary on Model Rule 3.3 in light of the perjury trilemma. It presents the key issues at stake for criminal defense attorneys facing prospective client perjury. Part I will discuss the constitutional questions surrounding the issue of prospective client perjury faced by the criminal defense attorney. The question of whether an attorney has violated the tenets of the Model Rules turns, generally, on two issues: what is “knowingly” and what is “material.” Part II of this Note will discuss the knowledge requirement of Model Rule 3.3, arguing that the ABA and the courts should adopt the most stringent standard for knowledge: that a criminal defense attorney must have proof beyond a reasonable doubt before going to the drastic step of disclosure to the tribunal. This will preserve the constitutional rights of criminal defendants and maintain the sanctity of the attorney-client relationship. Part III will discuss the materiality requirement of Model Rule 3.3, arguing that materiality of a disputed fact is an important consideration in a lawyer’s individual determination of her obligations under Model Rule 3.3. Finally, Part IV will discuss what options are available to attorneys who may find themselves facing potential client perjury. The Model Rules should list the available possibilities, relying on the lawyer’s judgment to determine what is best for the client.