NCJ Number
85932
Journal
Denver Law Journal Volume: 59 Issue: 1 Dated: (1981) Pages: 75-91
Date Published
1981
Length
17 pages
Annotation
This article examines the different approaches to the ethical dilemma which confronts defense counsel when the client intends to commit perjury, and proposes a practical, ethically acceptable solution.
Abstract
The perjury issue can assume ethical dimensions when defense counsel knows that the client intends to offer false testimony. These lawyers' dilemmas arise from their duty as officers of the court not to offer false testimony and their concomitant duty to their clients to preserve confidential communications and to discover all relevant facts known to the accused in order to prepare an effective defense. The American Bar Association Code of Professional Responsibility fails to prescribe a precise course of conduct for criminal lawyers in this regard. Similarly, the Model Rules of Professional Conduct do not specify a proper procedure. Under the rules, the duty to disclose perjury arises only when the lawyer knows that the offered evidence is false. In contrast, the American Lawyer's Code of Conduct takes the position that the lawyer's primary duty is to the client; this work rejects any proposal to weaken the protection of an accused client's rights. It is suggested than an advisory council on professional ethics be established by the States. Under this concept, when defense counsel learns that the client intends to commit perjury, the attorney submits the statement and proof to the council. If the council determines that the attorney's belief is substantiated by the facts, the attorney will be allowed to withdraw from the case. The defendant would then be permitted the right to obtain a new counsel. The article provides 114 footnotes.