Lawyers And Clients: Advising On Illegal Activities

Lawyers are subject to discipline when they violate the Rules of Professional Conduct. While a lawyer cannot advise a client to break the law, they can advise a client on actions the client is legally entitled to take. In the case of a client intending to commit perjury, a lawyer's first duty is to attempt to dissuade the client and inform them that the lawyer will have to withdraw from representation if the client continues with their intention. If the client continues with their intention to provide false testimony, the lawyer should withdraw from representation and may be required to disclose the specific reason for withdrawal if instructed to do so by the court.

Lawyers can advise clients on actions they are legally entitled to take

Lawyers advising clients on actions they are legally entitled to take is a complex area, and it is important to understand the nuances and boundaries. While a lawyer cannot actively assist a client in breaking the law, they can advise a client on actions that are within their legal rights. This is a key distinction to make.

For example, a lawyer may advise a client on the legal options available to them, which may include actions that are technically illegal but for which there are no negative implications regarding fitness to practice law. This could include matters of personal morality, such as adultery, which is not illegal in all states. However, it is important to note that this does not mean a lawyer can assist a client in breaking the law without consequences. Lawyers are subject to discipline if they violate the Rules of Professional Conduct.

In the case of a client intending to commit perjury, a lawyer's first duty is to attempt to dissuade the client. If the client insists, the lawyer must withdraw from representation and may be required to disclose the reason for withdrawal, which could include revealing the client's intent to the court. This is to ensure the lawyer is not implicated in the commission of perjury or the falsification of evidence.

Additionally, a lawyer must always be mindful of their ethical obligations, which remain the same regardless of whether they are representing a civil or criminal client. These obligations include not only professional ethics but also legal obligations under the law.

Lawyers must attempt to dissuade clients from committing perjury

Lawyers have an ethical obligation to dissuade a client from committing perjury. If a client informs their lawyer of their intention to commit perjury, the lawyer must first attempt to dissuade the client and advise them that they will withdraw from the representation if the client proceeds with the proposed perjury. If the client continues to insist on providing false testimony, the lawyer should withdraw from the representation.

In the case of a criminal defendant who insists on testifying, the lawyer should structure the examination to elicit as little false testimony as possible. The lawyer must keep the client off the stand if they intend to lie throughout their testimony. The lawyer must also not call a witness who plans to lie and create an alibi for the defendant.

If a lawyer learns of a client's perjury after the fact, they must take remedial measures to correct the client's misconduct. The lawyer should first remonstrate with the client and attempt to convince them to inform the court or the opposing party of their misconduct. If the client refuses, the lawyer must inform the court or the opposing party of the false evidence or testimony.

While there is an ongoing academic debate about whether a lawyer may offer perjured testimony, the rules of most jurisdictions prohibit a lawyer from doing so. Upon learning that perjured testimony has been offered, the lawyer is required to take remedial measures, including disclosure to the court if necessary.

Lawyers may withdraw from representation if a client insists on committing perjury

Lawyers have a duty to uphold the integrity of the legal profession and are subject to discipline if they violate the Rules of Professional Conduct. While lawyers are not prohibited from advising a client concerning actions the client is legally entitled to take, they are not allowed to assist a client in breaking the law.

Lawyers have an ethical obligation to dissuade their clients from committing perjury. If a lawyer becomes aware that their client intends to commit perjury in court, the attorney must first try to dissuade their client from lying. The lawyer should inform the client that they will have no choice but to withdraw from the matter and inform the court of the client's misconduct if they testify falsely. If the client continues to insist that they will provide false testimony, the lawyer should move to withdraw from representation.

Withdrawing from the case is both an ethical mandate and in the best interest of the attorney, as it minimizes potential liability for the lies that their client tells. However, withdrawing from the case does not necessarily excuse the fraud that has been committed, so lawyers should take additional steps to inform the court of their client's perjury. The lawyer may be required to disclose the specific reason for withdrawal if asked by the court, although they are ordinarily bound to keep the facts that would constitute such an explanation confidential.

In some cases, withdrawal before trial may not be possible, either because the trial is imminent, the confrontation with the client does not occur until the trial, or no other counsel is available.

Lawyers must disclose a client's intent to commit perjury to the court upon withdrawal

Lawyers have a duty to uphold the integrity of the legal profession and the legal system. In the course of their work, lawyers may encounter situations where their clients intend to commit perjury or provide false evidence. In such cases, lawyers must follow specific ethical guidelines to maintain their professional integrity and uphold the truth-finding process of the court.

When a lawyer becomes aware of their client's intention to commit perjury, their first duty is to attempt to dissuade the client from doing so. The lawyer should inform the client that they will not tolerate perjury and will be forced to withdraw from the representation if the client insists on providing false testimony. This is because presenting false evidence or assisting a client in committing perjury constitutes misconduct and reflects adversely on the lawyer's fitness to practice law.

If the client continues to insist on providing false testimony, the lawyer should immediately move to withdraw from the representation. Upon withdrawal, the lawyer may be required to disclose the specific reason for their withdrawal to the court. In some states, such as Florida, lawyers are mandated to affirmatively disclose their client's intent to commit perjury upon withdrawal. This disclosure ensures that the lawyer does not become complicit in deceiving the court and maintains their duty of candor toward the tribunal.

However, it is important to note that the rules regarding disclosure may vary by state. In certain situations, a lawyer may not be required to disclose their client's intent to commit perjury upon withdrawal. Instead, they may request permission from the court to withdraw without disclosing the specific reason, although the judge may still suspect perjury as the motive. Ultimately, the lawyer must balance their ethical obligations with the confidentiality agreements inherent in the attorney-client relationship.

Lawyers cannot assist clients in presenting false evidence or testimony to the court

Lawyers are obligated by law and professional ethics to avoid participating in the presentation of false evidence or testimony to the court. This obligation is premised on the lawyer's responsibility as an officer of the court to prevent the trier of fact from being misled by false evidence.

If a lawyer knows that their client intends to testify falsely or wants them to introduce false evidence, they should first attempt to persuade the client not to offer the false evidence. If the lawyer is unsuccessful and the client continues to insist on testifying falsely, the lawyer must refuse to offer the perjured testimony or immediately withdraw from the representation.

In the event that false evidence is presented despite the lawyer's best efforts, the lawyer is still required to take remedial action. This may include making a disclosure to the tribunal or court, even if doing so requires the lawyer to reveal information that would otherwise be protected by attorney-client privilege.

It is important to distinguish between a lawyer's actual knowledge and a reasonable belief or suspicion that their client has lied or offered false evidence. A lawyer is only required to take action if they have actual knowledge that their client has testified falsely. If they only have a reasonable belief or suspicion, they are not obligated to disclose their suspicions, but they should still resolve doubts about the veracity of testimony or evidence in favor of their client.

While some commentators have argued that a lawyer must abide by their client's decision to testify, including testifying falsely, this view is not widely accepted and contradicts the lawyer's ethical and legal obligations.

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