by Fred C. Moss
Never do a lawyer’s dual roles as champion of the client and officer of the court come into greater conflict as when the lawyer knows her client either intends to commit or has committed perjury. What must, may, and must not a Texas lawyer do? Our profession has debated these questions for generations, particularly the criminal defense lawyer’s obligations.
On the champion side, Lord Brougham, in defense of Queen Caroline at her criminal trial for adultery, proclaimed, “[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.” In this view of a lawyer’s “role-bound morality,” only the lawyer stands between the accused and the state, and she must do all she can—within the law—to defend her client.
However, licensed as an “officer of the court,” the lawyer must not allow perjury to pollute the waters of justice. She cannot knowingly facilitate perjury. Thus, if the lawyer knows that her non-client witness intends to commit perjury, the lawyer’s duty is clear: either she must not call the witness or she must question around the perjury, even against the client’s wishes. If the witness lies, the lawyer must reveal it if the witness will not. TDRPC Rule 3.03, cmt. 5. However, if the criminally accused client commits or intends to commit perjury, the matter is not as clear.
Note these distinctions: first, lawyers may put on testimony they suspect, even strongly, is false. The prohibition against offering false evidence applies only when the lawyer knows it is false. So, some lawyers try to avoid “knowing.”
Second, ethics rules distinguish between civil and criminal clients. Only the latter have a constitutional right to testify. Thus, the accused’s lawyer must accede to the client’s demand to testify even when the lawyer knows the client will lie. See Rule 3.03, cmt. 10. What must this lawyer do? First, try to dissuade the client, using practical reasons (the lie will be exposed), moral grounds (it is wrong), and the lawyer’s ethical duty (the lawyer will be forced to do something that almost certainly will prejudice the client).
If unsuccessful, the lawyer may try to withdraw from the representation, usually unsuccessfully. It simply transfers the dilemma to successor counsel. If withdrawal is denied, the lawyer’s ethical and moral dilemmas come to a head.
Here, the profession divides into three camps. The most controversial, not sanctioned by any American court, argues that the lawyer must proceed as if unaware that the client will or has lied. Professor Monroe Freedman, echoing Lord Brougham, argued that the lawyer’s duties of loyalty and confidentiality to the client trump the lawyer’s duties to the court.
Texas, the A.B.A. Model Rules, and most states are in the second camp, favoring the court’s interests over the accused’s. The Freedman/Brougham solution, says Camp Two, amounts to facilitating perjury. Moreover, the Supreme Court held in Nix v. Whiteside, 475 U.S. 157 (1986), that the accused has no constitutional right to commit perjury with the assistance of counsel. Thus, Rule 3.03(a)(5): “A lawyer shall not knowingly . . . offer or use evidence that the lawyer knows to be false.” See id., cmt. 12. And when it happens, the lawyer must reveal the client’s confidences to the court if no other “remedial measures” will be successful. Rule 3.03(b) and cmts. 8-12; Tex. Ethics Op. 504 (1994).
Camp Three, the middle ground, attempts to avoid requiring the lawyer to reveal or facilitate the perjury. Unless the lawyer can avoid eliciting perjury, she asks no questions and simply tells the client to narrate his story. About a dozen jurisdictions have adopted this “narrative solution” as the best compromise for criminal trials. Camps One and Two reject it as signaling fact-finder that the accused is lying and not preventing or correcting the perjury.
The commentary to Texas Rule 3.03 rejects the narrative solution. However, Texas courts, while not recommending it, have held the technique not to be ineffective assistance of counsel. Maddox v. State, 613 S.W.2d 275 (Tex. 1981); Weisinger v. State, 775 S.W.2d 424 (Tex.App.—Houston [14th Dist.] 1989, writ ref’d). Note that these cases pre-date Nix and the TDRPC.
In sum, Texas criminal defense attorneys may use the reveal or narrative solutions. The best hope is that on being warned that the lawyer will try to withdraw, and if unsuccessful, either reveal the perjury to the court or have him narrate his testimony, the client may reconsider.
Fred Moss is an Emeritus Professor at SMU Dedman School of Law, where he taught and consulted on legal ethics for over 30 years before retiring in 2009. He was on the State Bar’s Ethics Rules Committee for several years. He may be reached at email@example.com.