June 20, 1996
A lawyer may not reveal that a client testified falsely at the trial of a criminal matter, where the client does not consent to the disclosure and the lawyer's services were not used in furtherance of the false testimony.
A lawyer may not seek post-appeal relief on behalf of a client if the facts associated with the client's prior false testimony are material to the relief sought. The lawyer may seek post-appeal relief without revealing the prior false trial testimony if the facts associated with that testimony are not material to the relief sought.
A lawyer must counsel the client on the client's options, and the limitations on the lawyer's conduct presented by the lawyer's knowledge of the client's prior false testimony.
References: MRPC 1.2, 1.4, 1.6, 3.3; RI-33, RI-72, RI-106, RI-111, RI-151, RI-209.
A lawyer has been retained to represent a client seeking post-appeal remedies in a criminal case. The client has been convicted of first degree criminal sexual conduct and assault with intent to do great bodily harm less than murder, and appeals were unsuccessful. At the trial, represented by other counsel, the client testified that he had "blacked out" due to the use of drugs and alcohol, and did not remember anything about the crimes alleged. The client has now told present counsel that the client's trial testimony was untruthful, that the client did have intercourse with the victim but that it was consensual, and that the client did assault the victim following intercourse.
The lawyer asks whether there is a duty to advise the court of the client's untruthful trial testimony, recognizing that this may result in a charge of perjury but that it may also assist in obtaining post-appeal relief.
Portions of several Rules are applicable to this inquiry. MRPC 1.4(b) requires a lawyer to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. MRPC 1.2 (c) and (d) state:
"(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.
"(d) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."
MRPC 1.6 (b) and (c) state:
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client . . . .
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime . . . ."
MRPC 3.3 (a) and (b) state:
"(a) A lawyer shall not knowingly:
"(1) make a false statement of material fact or law to a tribunal;
"(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client . . . .
"(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."
Applying these Rules to the facts as provided, it appears that the lawyer does not have a present right or duty to disclose the client's false testimony. Clearly, this is a "confidence" or "secret" of the client under MRPC 1.6(a), which cannot be revealed or used to the disadvantage of the client unless one of the circumstances set forth in MRPC 1.6(c) applies or one of the duties in MRPC 3.3 is triggered.
In analyzing MRPC 1.6, the exception in MRPC 1.6(c)(1) does not apply unless the client consents, and the exception in MRPC 1.6(c)(3) does not apply to these facts insofar as the lawyer's services have not, as of yet, been used in furtherance of the client's illegal or fraudulent act. Compare RI-209 and RI-151 (lawyers' services used to further the act) with RI-111, RI-106 and RI-72 (lawyers' services not used to further the act). Because the client's revelation does not involve the intention to commit a future crime, MRPC 1.6(c)(4) does not apply. In analyzing 3.3, the current counsel was not counsel at trial, and this counsel's services could not have been used to further the client's untruthful testimony.
If the lawyer proceeds with the representation, the lawyer's knowledge of the client's prior conduct will limit the lawyer's actions. Because of the lawyer's duties under MRPC 3.3, the lawyer may not seek post-appeal relief on behalf of the client that in any way involves reliance on the client's false trial testimony. Pursuant to MRPC 3.1 the lawyer may not submit a nonmeritorious claim. If the facts of the client's mental condition at the time of the crimes alleged is in any manner material to the post-appeal relief sought, the lawyer may not fail to disclose the facts now known in this regard. This duty applies, pursuant to MRPC 3.3(b), regardless of whether the lawyer's services were initially used to further the illegal or fraudulent act. See also, MRPC 1.6(c)(2). Only if the client's prior testimony is not material to the post-appeal relief sought may the lawyer proceed without a duty to reveal the client's prior false testimony being triggered. See RI-33.
Under these circumstances the lawyer's duties to counsel the client, as expressed in MRPC 1.4 and MRPC 1.2, become very important. For example, if the lawyer believes that the new version of the facts disclosed by the client improves the chances of obtaining post-appeal relief, the lawyer may counsel the client as to the risks and benefits involved, and obtain the client's consent to reveal the falsity of the prior testimony. Regardless, the lawyer must advise the client of the limitations on the lawyer's conduct imposed by MRPC 3.3. This may affect the client's decision regarding the scope of post-appeal relief to be sought, or whether to seek such relief at all.
To conclude, the lawyer does not have a present right or duty to disclose the client's prior false testimony. The lawyer may continue to represent the client in seeking post-appeal relief without revealing the prior false testimony only if the facts associated with that testimony are not material to the relief sought. The lawyer must counsel the client with regard to the options available and the limitations on the lawyer's conduct and, if the client consents, may reveal the client's prior false testimony in connection with a request for post-appeal relief.