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Ethics Opinion

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RI-148

October 28, 1992

SYLLABUS

    A lawyer who discovers after a jury trial at which the lawyer's client is convicted of a crime that the alibi to which the client testified is false, is not required to take remedial measures, but the lawyer may not pursue post conviction or appellate remedies which involve the client's false testimony unless the false testimony is revealed.

    References: MRPC 1.2(c), 3.3(a) and 3.3(b).

TEXT

A lawyer has inquired as to the lawyer's professional obligations when, after a criminal trial, the lawyer discovers that the lawyer's client gave false alibi testimony and submitted false documentation in support of the alibi defense. The lawyer's client was convicted in the case, and the defendant wishes to pursue post conviction relief.

MRPC 3.3(a) and (b) state:

    "(a) A lawyer shall not knowingly:

      "(1) make a false statement of material fact or law to a tribunal;

      "(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

      "(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

      "(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

    "(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."

The lawyer's mandatory obligation to take reasonable remedial measures under MRPC 3.3(a)(4), including disclosure of the client's false evidence to the tribunal, ceases once the trial has concluded, whether the defendant was convicted or not convicted. MRPC 3.3(b).

Under MRPC 3.3(b), the lawyer's obligation under MRPC 3.3(a)(2) also terminates at the end of the trial. Because the lawyer was not aware of the false testimony during the trial, the lawyer's action in examining the witness on this testimony and the related false documents was not the knowing assistance of the client's criminal or fraudulent act.

MRPC 1.2(c) states:

    "(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law."

If any portion of the client's post conviction relief seeks to rely upon the client's false testimony or evidence, a lawyer's pursuit of such post conviction relief would assist the client in a continuing attempt to capture the benefit of the client's false testimony contrary to MRPC 1.2(c). If the false evidence is material to the post conviction relief, or a judge might consider the false evidence in deliberating on the post conviction motion or appeal, then MRPC 1.16(a)(1) would require the lawyer to seek to withdraw from representing the client on the post conviction relief.

MRPC 3.3(a)(2) would require disclosure if the lawyer sought the post conviction relief. MRPC 1.2(c) does not preclude a lawyer from attempting to have the client's conviction overturned on other procedural or factual grounds that do not relate to the false evidence. Yet, MRPC 1.16(b)(2) would permit withdrawal from further representation. The lawyer could not, under MRPC 1.2(c) and 3.3(a), use the client's false testimony and documents in a subsequent trial, or use it in any way to plea bargain on behalf of the client.

Therefore, a lawyer who discovers after a jury trial at which the lawyer's client is convicted of a crime that the alibi to which the client testified is false, is not required to take remedial measures, but the lawyer may not pursue post conviction or appellate remedies which involve the client's false testimony.

 
     

 

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