My position on what the rule should be on client perjury is clear. The lawyer should make good faith, ongoing efforts to dissuade the client from lying (which could include going to trial but not testifying, or agreeing to a plea bargain). But, if those efforts are unsuccessful and the client insists on his right to trial by jury and his right to testify in his own defense, the lawyer should conduct the direct examination in the ordinary way and should argue the client’s testimony as evidence in the case. With regard to real evidence, I agree with Steve Gillers' article, Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer’s Responsibility for Real Evidence, 63 Stan. LR 813 (2011).
However, when I am counseling a lawyer, that lawyer is my client, to whom I owe a fiduciary duty and whom I represent zealously. My client is not my view of what the rule should be; nor is my client my lawyer-client’s client (i.e., the criminal defendant). I therefore view my job as doing my best to help my lawyer-client avoid possible disciplinary action or criminal prosecution.
In a recent pro bono case, for example, I represented a lawyer who learned that his client had concealed a videotape in anticipation of a government search. The videotape contained information showing that the police had committed perjury about a search that they had conducted, but the videotape also contained incriminatory information. I advised my lawyer-client to go immediately to the judge ex parte, and to give the judge the videotape along with a motion requesting leave to use the videotape to impeach the police, and also asking the judge to allow them to turn over to the prosecution only the exculpatory part of the videotape. In response (which we expected) the judge told the lawyer to turn over the entire tape to the government, which he then did.
A short time later, the government told the defense lawyer that it intended to charge him with aiding and abetting a felony and with obstruction of justice. I advised the lawyer to immediately move to withdraw on grounds of conflict of interest. Here is what defense counsel emailed to me thereafter:
The Court asked me why I was withdrawing. I said it was because the government threatened me with prosecution and therefore gave me no choice. The government told the judge that they were concerned that, before I produced the tape, I was "impeding" the investigation and it was "serious." And then:
THE COURT: Well, we all thought it was a serious matter, which is why we had the hearing. And let me just be very up front and candid. This matter was brought to both the Court's attention and your attention by the voluntary disclosure of [the defendant’s lawyer].
THE PROSECUTOR: No, that's not true, Your Honor.
THE COURT: It is true. He filed ex parte, under seal, a notice to the Court.
THE PROSECUTOR: But not to us.
THE COURT: But I told you about it then, and then he voluntarily provided the tape. Had he desired to do anything of an unethical or illegal nature, he wouldn't have retained an eminent expert on conflicts and responsibilities of defense counsel, gotten that opinion, and then brought it to the attention of the Court.
THE PROSECUTOR: And I have never seen that opinion, Your Honor.
THE COURT: Well, I have, and I'm confident that there is no impropriety on the part of [defense counsel], period. Now, let's move to the next issue.
However, when I am counseling a lawyer, that lawyer is my client, to whom I owe a fiduciary duty and whom I represent zealously. My client is not my view of what the rule should be; nor is my client my lawyer-client’s client (i.e., the criminal defendant). I therefore view my job as doing my best to help my lawyer-client avoid possible disciplinary action or criminal prosecution.
In a recent pro bono case, for example, I represented a lawyer who learned that his client had concealed a videotape in anticipation of a government search. The videotape contained information showing that the police had committed perjury about a search that they had conducted, but the videotape also contained incriminatory information. I advised my lawyer-client to go immediately to the judge ex parte, and to give the judge the videotape along with a motion requesting leave to use the videotape to impeach the police, and also asking the judge to allow them to turn over to the prosecution only the exculpatory part of the videotape. In response (which we expected) the judge told the lawyer to turn over the entire tape to the government, which he then did.
A short time later, the government told the defense lawyer that it intended to charge him with aiding and abetting a felony and with obstruction of justice. I advised the lawyer to immediately move to withdraw on grounds of conflict of interest. Here is what defense counsel emailed to me thereafter:
The Court asked me why I was withdrawing. I said it was because the government threatened me with prosecution and therefore gave me no choice. The government told the judge that they were concerned that, before I produced the tape, I was "impeding" the investigation and it was "serious." And then:
THE COURT: Well, we all thought it was a serious matter, which is why we had the hearing. And let me just be very up front and candid. This matter was brought to both the Court's attention and your attention by the voluntary disclosure of [the defendant’s lawyer].
THE PROSECUTOR: No, that's not true, Your Honor.
THE COURT: It is true. He filed ex parte, under seal, a notice to the Court.
THE PROSECUTOR: But not to us.
THE COURT: But I told you about it then, and then he voluntarily provided the tape. Had he desired to do anything of an unethical or illegal nature, he wouldn't have retained an eminent expert on conflicts and responsibilities of defense counsel, gotten that opinion, and then brought it to the attention of the Court.
THE PROSECUTOR: And I have never seen that opinion, Your Honor.
THE COURT: Well, I have, and I'm confident that there is no impropriety on the part of [defense counsel], period. Now, let's move to the next issue.
Excellent. From the stories I've heard, prosecutors too often forget that the ban is on obstructing justice, not obstructing prosecution.
Long-shot thought - although there's no ACR with the original client, counsel's counsel is still balancing a third party's Constitutional right (6A) against a client's statutory obligations (MR). Again, total long shot, but if counsel is employed by the state (e.g., a PD) this might (perhaps, theoretically) provide sufficient 'color of state law' to create S1983 tort liability for counsel's counsel. And where there's liability, there's arguably an antecedent ethical obligation.
Just a thought.
(Not legal advice. Don't rely.)
Posted by: Trotsky | November 09, 2012 at 12:32 PM
Re sec. 1983, see Polk County v. Dodson, 454 U.S. 312 (1981).
Posted by: Monroe Freedman | November 09, 2012 at 03:43 PM
Interesting case - many, thanks, Professor. I'd actually distinguish that decision from the facts of the hypo, though. The holding seems to be that conformity with 'administrative rules and procedures' of the court was insufficient color of state law, given the independence of the PD.
Here, though, the color of state law might be the ethical rule itself as codified/promulgated. That is, the PD wouldn't be engaging in conduct designed to serve the state by zealously representing his or her client, but injuring that relationship by acting in conformity with the state ethical law is a different matter. The MR is clearly more than an 'administrative regulation.' Further, when the PD engages a second lawyer, that relationship (AKA conspiracy) doesn't have the same safe-harbor as the client relationship in Polk County. It's a contract by a state agent with an outside party to ensure compliance with a state law, and if the effect is to injure a third party's constitutional rights, S1983 might be relevant.
Thanks for the cite - apologies for not responding earlier. Meant to check back Monday, but was distracted elsewhere.
(Due Disclaiming: Not legal advice. Don't rely. I've gone to law school and passed the Bar, but am not yet a lawyer. Vive la revolution.)
Posted by: Trotsky | November 14, 2012 at 11:19 AM
Just a quick coda - from Blackmun's dissent -
"The Court appears to concede that a public defender may act under color of state law when performing unspecified administrative and investigative functions, or even when acting as an advocate — if his conduct is "nontraditional," or if the plaintiff pleads and proves that the State influenced the attorney's representation."
[In fairness, though, he goes on to say:]
"In essence, the Court appears to be holding a public defender exempt from § 1983 liability only when the alleged injury is ineffective assistance of counsel."
Posted by: Trotsky | November 14, 2012 at 11:43 AM
Sorry, just reread, and there's an egregious typo in the comment - should read:
----
Here, though, the color of state law might be the ethical rule itself as codified/promulgated. That is, the PD would be engaging in conduct designed to serve the state by zealously representing his or her client, but here, he's injuring that relationship by acting in conformity with the state ethical law. The MR is clearly more than an 'administrative regulation.' Further, when the PD engages a second lawyer, that relationship (AKA conspiracy) doesn't have the same safe-harbor as the client relationship in Polk County. It's a contract by a state agent with an outside party to ensure compliance with a state law, and if the effect is to injure a third party's constitutional rights, S1983 might be relevant.
[Also, Polk County implicitly assumes the Strickland 'strategic choice' default explanation for counsel's actions when assessing an ineffective assistance claim. Where state law requires counsel to take an action against the client's interest it can't meaningfully be described as strategic. (The choice in Polk County was resource allocation, not the possibility of a sanctionable argument.) When a statute explicitly commands an action against the client's interests, I think S1983 might arguably be back in play.]
Great and Powerful Site Admin - any chance of deleting the initial comment? Thanks.
Posted by: Trotskii | November 15, 2012 at 12:56 PM