I was recently cross-examining an expert witness who had never testified before. I asked him whether he had made any prior reports to the one in evidence. He hesitated for a long time. His body language indicated evasiveness. Finally, he said, “I don’t think so.” I tried to pin him down and asked him again if he ever submitted any other report, draft report, or written or oral opinion to counsel. Again, he said “no.” But he lied under oath. The lie was made evident when cross examining another witness who relied on the previous expert’s report. The honest expert testified that he made a prior report and produced his earlier draft, which contained lower costs identified as having been created by our perjurer.

Obviously, this does not reflect well on our first witness. But the issue here is why didn’t the other lawyer (the lawyer for the condemnor) say something? He knew that his witness made prior reports. He also knew that his expert was testifying falsely. So, the question becomes: what are a lawyer’s ethical obligations when he knows his witness is testifying falsely?

The New York State Bar Association has taken a clear stance on the issue by promulgating the New York Rules of Professional Conduct (“NYRPC”), which were adopted by the Appellate Division of the New York State Supreme Court and published as Part 1200 of the Joint Rules of the Appellate Division (22 NYCRR Part 1200). NYRPC Rule 3.4(a)(4) directs that a lawyer shall not knowingly use perjured testimony or false evidence. Additionally, NYRPC Rule 3.3(a)(3) states that a lawyer shall not knowingly “offer or use evidence that the lawyer knows to be false.” The rule continues, “[a] lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.”

Comment [2] to this rule cautions: “the lawyer must not allow the tribunal to be misled by false statements of law or fact or by evidence that the lawyer knows to be false.” Thus, after reviewing and probably suggesting revisions to a report, it was unethical for the condemnor’s lawyer to stand mute while his expert lied on the witness stand.

In People v. Salquerro, 107 Misc.2d 155 (N.Y. Sup. Ct. 1980), the New York Supreme Court held that if an attorney knowingly presents perjured testimony, he would be practicing fraud on the tribunal. Salquerro involved a defendant indicted for attempted murder and robbery who placed his defense attorney in a troubling ethical dilemma: The day before the trial was to begin, the defendant unequivocally informed his defense attorney that he intended to lie when he was called to testify on his own behalf. Id. at 155. The defense attorney then immediately informed both the court and the Assistant District Attorney of his client’s intention (without disclosing the substance of any anticipated false testimony). Thereafter, the defense counsel expressed concern over the effect of his disclosure on his relationship with his client, and in his motion to withdraw as counsel he wrote that he felt the disclosure may have “destroyed totally the necessary confidence that a client must have in his attorney in order to receive the effective assistance of counsel which the Sixth Amendment guarantees.” Id. at 156.

The court denied the motion to withdraw, noting that “there can never be a real conflict between the attorney’s obligation to provide a zealous defense and his moral duties to himself and the court.” Id. After citing the ethical canons mentioned above (requiring that a lawyer not knowingly use perjured testimony or false evidence), the court explained, “[f]raud on the court… can be characterized as a scheme to interfere with the judicial machinery performing the task of impartial adjudication,” and concluded that “an attorney who knowingly presents perjured testimony is practicing a fraud on the tribunal.” Id.[1]

What Remedial Measures Should Be Taken?

NYRPC Rule 3.3(a)(3) directs that “If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Comment [10] to NYRPC Rule 3.3 elaborates: “A lawyer may be surprised when the lawyer’s client or another witness called by the lawyer offers testimony the lawyer knows to be false, either during the lawyer’s direct examination or in response to cross-examination by the opposing lawyer. In such situations, or if the lawyer knows of the falsity of testimony elicited from the client during a deposition, the lawyer must take reasonable remedial measures. The advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of candor to the tribunal, and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

If this approach fails, the comment to the rule explains “the advocate must take further remedial action.” If withdrawal from the representation is not permitted or “will not undo the effect of the false evidence, the advocate must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal confidential information that otherwise would be protected by Rule 1.6.”[2]

In regards to Rule 3.3, Comment [15] explains that the “lawyer’s compliance with the duty of candor imposed by this Rule does not automatically require that the lawyer withdraw from the representation of a client whose interests will be or have been adversely affected by the lawyer’s disclosure.” It continues, “the lawyer, however, may be required by Rule 1.16(d) to seek permission of the tribunal to withdraw if the lawyer’s compliance with the Rule’s duty of candor results in such an extreme deterioration of the client-lawyer relationship that the lawyer can no longer competently represent the client.”

          The full version of this article will appear in The Practical Real Estate Lawyer in the November issue.

[1] See also People v. DePallo, 275 A.D.2d 60 (N.Y. App. Div. 2000) (defense counsel did not deny defendant effective assistance when he informed court that defendant intended to perjure himself on the stand); People v. Diaz, 199 A.D.2d 182 (N.Y. App. Div. 1993) (defense counsel’s actions in discharging ethical duties after learning during trial that client intended to commit perjury did not deny client effective assistance of counsel); In re: Matter of Malone, 105 A.D.2d 455 (N.Y. App. Div. 1984) (attorney disciplined for directing witness to provide false testimony).

[2] Of course, withdrawal of the lawyer may be appropriate in certain circumstances as governed by NYRPC Rule 1.16.

Posted in Attorneys' Ethics, Perjury, Uncategorized
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