RI-13

March 21, 1989

SYLLABUS

    A lawyer who knows that a client has given false testimony in a deposition has a duty to rectify the consequences of the client's act.

    A lawyer may not reveal client confidences or secrets based on a mere suspicion, rather than knowledge, of a client's false testimony.

    Termination of the attorney-client relationship does not discharge the duty of a lawyer to rectify the consequences of a client's fraudulent act.

    References: MRPC 1.6(c)(3), 1.13, 3.3(a)(4), 3.3(b), 3.3(c).

TEXT

A lawyer was discharged by the lawyer's clients, a financial institution and its Chief Executive Officer [CEO], the day following the CEO's deposition testimony which was not completed and had been adjourned to a later date. The financial institution and the CEO were defendants, and the lawyer is concerned that the CEO made two statements that could "possibly be considered perjured testimony." The lawyer is not absolutely certain the CEO testified falsely, although the lawyer has "more than a mere suspicion" that the CEO has done so.

The lawyer asks whether there is a duty to correct the deposition of the former client or to advise the tribunal of the former client's tactics.

If a client has presented false testimony at a deposition, the lawyer's duty is clear. Under MRPC 3.3(a)(4), the lawyer shall take reasonable remedial measures to correct the false testimony or rectify the consequence of the client's act. In this case, the lawyer is not certain the deposition testimony was false, and thus there is no duty to correct or rectify.

May a client relieve a lawyer of any duty to take "reasonable remedial measures" to ensure the client's truthful testimony by discharging the lawyer? Under MRPC 3.3(b), "the duties continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6." Discharge or withdrawal of the lawyer does not affect this duty.

Has the client, in effect, coerced the lawyer into being a party to fraud on the court if the testimony turns out to be false? MRPC 3.3 uses the language "knows to be false." The lawyer's "more than a mere suspicion" is not enough. See Hazard, The Law of Lawyering, Prentice-Hall, 1988 Supplement, pp. 354; CI-392. MRPC 3.3(c) gives a lawyer discretion in deciding whether to present evidence whose truthfulness is in serious doubt. But that remedy is not available to a lawyer who has been discharged.

Does a lawyer have an obligation to proceed further to make inquiry in some manner to determine whether the deposition was perjured? MRPC 1.6(c)(3) states:

    "(c) A lawyer may reveal:

      ". . .

      "(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used."

This Rule also requires knowledge of the illegal or fraudulent act. Similarly, MRPC 1.13 requires "knowledge."

In conclusion, since the deposition testimony is not known to be perjured, the lawyer may not reveal confidences and secrets to the tribunal or to the opposing party. There is no duty to investigate the truth of the testimony once the lawyer is discharged. The termination of the relationship does not affect a lawyer's duty to rectify the client's act if the lawyer had knowledge of perjury.