May 8, 1981
Where an attorney is informed by a witness that she will commit perjury if called to the stand, and the reasons for giving perjured testimony have been corroborated, the attorney should inform the client of the intent to exercise the lawyer'' professional judgment and not call the witness.
Should the attorney's client insist on calling the witness who will give perjured testimony, the attorney:
- Should seek immediate withdrawal from the case;
- If the court refuses withdrawal, the attorney should immediately inform the court of the circumstances and background of the witness and the probability that perjured testimony would be presented.
References: DR 7-101(B)(1), DR 7-102(A)(4).
A lawyer represents the plaintiff in a civil matter and at the plaintiff's request, the lawyer subpoenaed a witness to appear at trial on his behalf. This witness lives approximately 100 miles away. The witness has contacted the lawyer and has stated that she did not wish to testify because she feared the plaintiff. This fear was based on a long series of personal and legal hostilities between the witness and the plaintiff as well as a letter from the plaintiff's mental health therapist that stated that the plaintiff had threatened to kill her. Because of this threat, the witness has told the lawyer that should she be called to the witness stand, she could not testify truthfully. During the lawyer's discussions with the plaintiff, the plaintiff corroborated the facts upon which the witness's fears were based. The lawyer further indicate that the witness's testimony would not be crucial to proving the client's case, but would be somewhat cumulative if other witnesses testified as anticipated.
Your inquiry is directed to whether calling the witness to the stand would violate DR 7-102(A)(4). This disciplinary rule states:
"(A) In a lawyer's representation of a client, a lawyer shall not:
". . .
Although this question generally arises in connection with criminal trials, the disciplinary rule does not distinguish between criminal and civil matters. In Informal Opinion 1314 of the ABA Committee on Ethics and Professional Responsibility it is stated:
"It is the view of this Committee that DR 7-102(A) and more particularly sub-points (4),(6), and (7) thereof, clearly and unequivocally prevent an attorney from knowingly using perjured testimony or false evidence or participating in the creation or preservation of evidence when he knows or it is obvious that the evidence was false. This, of course, means that if the attorney knows in advance that his/her client intends to use false or perjured testimony, it is the attorney's duty to advise the client that the lawyer must take one of two courses of action:
"(1) Withdraw at that time in advance of the submission of the perjured testimony or false evidence; or
"(2) Report to the court or tribunal the falsity of the testimony or evidence, if the client insists on so testifying.
"It is axiomatic that the right of a client to effective counsel in any case (criminal or civil) does not include the right to compel counsel to knowingly assist or participate in the commission of perjury or the creation or presentation of false evidence."
The situation that you are faced with is unlike that found in a criminal trial where the defendant has the constitutional right to take the stand in his/her own defense. In that situation, where defense counsel knows that the client will perjure him or her self, the attorney should choose some remedial action which will maintain the integrity of the trial. In your case, since the witness does not have to be called to testify, you should not compel his testimony. His testimony is not crucial to proving your client's case. Using other testimony and evidence can prove your client's case. DR 7-101(B)(1) states:
"(B) In his or her representation of a client a lawyer may:
"(1) where permissible, exercise his or her professional judgment to waive or fail to assert a right or position of his or her client."
Therefore, failure to call this particular witness to the stand would insure that you would not be violating DR 7-102(A)(4) while at the same time affording you some protection under DR 7-101(B)(1).
If your client, after being informed of your desire to exercise your professional judgment pursuant to DR 7-101(B)(1) and refusal to call the witness, insists that the witness be called, then you should inform your client of the following courses of action that you will take:
- Seek immediate withdrawal from the case;
- If the court refuses withdrawal, you will immediately inform the court of the circumstances and background of the witness and the probability that perjured testimony would be presented.
The course of action to be taken by the trial judge is difficult to accurately predict. There could be special instructions to the witness regarding perjury, evidentiary hearings, and appointment of counsel for the witness, and other courses of action.
In fulfilling your dual obligations to your client, you should make every effort to prevent perjured testimony from being knowingly injected into the trial.