Steve Gillers and I have some fundamental disagreements about the perjury trilemma. Steve’s position is set out in “Monroe Freedman’s Solution to the Criminal Defense Lawyer’s Trilemma Is Wrong As a Matter of Policy and Constitutional Law,” 34 Hofstra L. Rev. 821 (2006). The most recent statement of my position is in “Getting Honest About Client Perjury,” 21 GJLE 133 (2008). Over the years we have tried to set up a debate, most recently at the invitation of the GJLE, but haven’t found a venue that is convenient for Steve. It occurred to me, therefore, that LEF might be the place to do it. So here’s a beginning.
The principal policy issue under MR 3.3 is that, in practice, the “actual knowledge” standard virtually never results in whistle-blowing by the lawyer unless the lawyer is court-appointed and representing someone who is poor and, typically, a member of a minority group. Only in the latter class of cases do lawyers decide that they “know” the client is committing perjury and elect to inform the court, thereby creating a de facto denial of equal protection. Consider, for example, the Enron litigation, where two juries were able to decide, beyond a reasonable doubt, that Ken Lay and Jeff Skilling were lying, but their lawyers couldn’t figure it out or, at least, didn’t “know” it.
When I raised this central policy issue with Steve at the Hofstra Ethics Conference, where he presented his article, his answer was not responsive. He said, in full: “So now we got a little too complicated, because we forced the lawyers to look at the rules. All right. Well, then there are – that would be part of the record and, you know, it depends upon the conversation.” (34 Hofstra L. Rev. at 843).
Perhaps, therefore, we can begin the debate with that policy issue, or, rather, those two policy issues – first, that MR 3.3 doesn’t work for the Ken Lays and Jeff Skillings of the world, and, second, that it works only for defendants who are poor and members of minorities.