However, an attorney must take action when their client is involved in an activity that would constitute commission of a crime or a fraud on the court.
For example, if the client desired to testify at trial and insisted upon using his false name, then the attorney must advise the client that the attorney cannot aid the client in testifying unless the client is willing to divulge that the name under which the client was charged is not his real name. The attorney is obligated to attempt to persuade the client to respond to any questions truthfully or by asserting an appropriate privilege. If the client is successful in making a material misrepresentation to the court concerning his true identity, either during a trial or during any court proceeding, the attorney is obligated to take "reasonable remedial measures" to remedy the fraud on the court.
Initially, an attorney must attempt to persuade the client to rectify the misrepresentation. If that fails, then the attorney must seek to withdraw, assuming that would remedy the situation. Because withdrawal will rarely remedy the fraud, the attorney may have to remedy the fraud on their own, assuming the client refuses to do so.
The client may also choose to decline to answer based on any applicable privilege. A client that you're representing states, during her deposition, that she was "far away" from the crime scene on the day that the victim was shot. In fact, she states further that she was in California during the shooting, attending her cousins' graduation.
If the client insists on testifying falsely, the lawyer should refuse to offer the perjured testimony or should immediately move to withdraw from the representation. Alabama has no such counterpart in the Rules of Professional Conduct. Under Rule 1. For example, if a lawyer learns that his client testified falsely after the conclusion of the case, the lawyer would not have a duty to disclose the fraud to the court.
Where a lawyer has actual knowledge that a client has testified falsely, then the lawyer would be required to comply with Rule 3. When a lawyer does not have actual knowledge, but rather only a reasonable belief that the client has lied or offered false evidence, then lawyer would not have any obligation to disclose his suspicions to the court or the opposing party.
However, Rule 3. While the Comment to Rule 3. In regard to the representation of criminal clients, the Alabama Comment provides, in pertinent part as follows:.
Whether an advocate for a criminally accused has the same duty of disclosure has been intensely debated. If the confrontation with the client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be possible, however, either because trial is imminent, or because the confrontation with the client does not take place until the trial itself, or because no other counsel is available.
The most difficult situation, therefore, arises in a criminal case where the accused insists on testifying when the lawyer knows that the testimony is perjurious.
On the other hand, if the lawyer does not exercise control over the proof, the lawyer participates, although in a merely passive way, in deception of the court.
Three resolutions of this dilemma have been proposed. In fact, we win many cases simply by proving that the police are not being truthful. Most cops and prosecutors are good people, but there are way too many bad apples, and it got us to wondering why. So, why do many police officers and prosecution investigators lie to judges and juries? It's because they know they can lie with impunity. Sadly, the criminal justice system often has the foxes guarding the hen house.
According to the petition for Writ of Certiorari filed in that case, Charles A. Rehberg was a forensic accountant who discovered evidence of unethical billing practices at Phoebe Putney Memorial Hospital in Albany, Georgia. James P. As a "favor" to the hospital, with whom he and the District Attorney had political connections, Paulk and the District Attorney launched a criminal investigation of the petitioner.
Using the grand jury process, the District Attorney's Office indicted Rehberg on three separate occasions for allegedly harassing the recipients of his anonymous faxes and for assaulting a doctor, a crime that Paulk later acknowledged had never occurred. Paulk was the sole complaining witness against Rehberg before the grand jury. Thus, although a lawyer should resolve doubts about the veracity of testimony or other evidence in favor of the client, the lawyer cannot ignore an obvious falsehood.
The key to this approach is knowledge. Moreover, just because the lawyer thinks the client will lie, does not mean they will. This philosophical exercise in epistemology seems a little disingenuous.
The lawyer must try and persuade the client not to perjure himself and explain the consequences of the proposed course of conduct to the client under R. Arguably, the lawyer would try and avoid gaining any actual knowledge during this process.
While R. If the lawyer reasonably believes the client has committed perjury, the analysis seems to fall under R. This perjury does not constitute a future crime pursuant to R. In addition, it does not involve fraud which will result in substantial injury to the financial interests or property of another. As such, the lawyer must analyze the facts of their individual case and determine whether disclosure is necessary to prevent reasonably certain death or substantial bodily harm.
Moreover, research shows that R. The case of Alton Logan is instructive. Two attorneys, Dale Coventry and Janie Kunz, knew that their client, Andrew Wilson, had committed the murder for which another man, Alton Logan, was serving a life sentence. Unsurprisingly, Wilson did not authorize his lawyers to disclose this information and ethical rule 1. Twenty-six years later, after Wilson died, the two lawyers signed affidavits revealing the information on the basis that Wilson had agreed to the disclosure after his death.
There was no question that the two attorneys could reveal the information without the consent of their client. Hughes has committed professional misconduct. These stories provide a gloss which will be helpful in any analysis under R. The lesson is that it is no small matter to breach the privilege. There is no simple solution to this dilemma. The approaches seem to vary based on their sources. In addition, judges ensured they got all the information. The ABA approach attempts to balance the competing rights and duties but is not that intellectually honest.
However, there are some principles that can be applied to the analysis:. Namely, if they tell you they are going to lie, you will have to withdraw or disclose the untruth to the court;.
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