MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2005-15
What obligation does a lawyer have when advised by a witness who testified on behalf of a client that the witness’s testimony was false?
Your inquiry dated June 20, 2005, has been considered by the Committee on Ethics of the Maryland State Bar Association, and I have been assigned to respond to you on behalf of the Committee.
Your inquiry involves the following pertinent facts. You represent a defendant in a lawsuit against him by the widow of a decedent. The widow claims that your client owes money on a loan made by the decedent to your client. Your client and the plaintiff and their families had been friends for about 30 years and the families were very familiar with each other. Your client’s defense is based on a claim that the loan was offset by an agreement that your client made with the deceased allowing the deceased to forego paying rent in repayment of the loan. At trial, one of the decedent’s sons testified in your client’s favor and against the interest of his mother. His testimony was not the sole evidence or testimony in your client’s favor as there were some 4-6 other witnesses who testified in favor of your client. The court ruled in favor of your client and the plaintiff has appealed.
After the trial, the son who had testified in your client’s favor called your client and your client’s daughter. They asked you to speak to the witness and he told you that he needed money and that he felt entitled since he had lied to help your client’s case. You have since been told by the client and his daughter that the witness has now recanted his allegation of perjury. The matter is still on appeal.
Rule 3.3 of the Maryland Rules of Professional Conduct describe a lawyer’s responsibility when the lawyer has “offered material evidence and comes to know of its falsity.” Specifically, the Rule charges the lawyer with taking “reasonable remedial measures.” These duties “continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.” Rule 3.3(b). In Comments to this Rule much of the commentators’ discussion involves the lawyer’s quandary when it is the lawyer’s client who has given false testimony. Nevertheless, the Committee construes the Rule and the Comments to require a lawyer who becomes aware that a witness has testified falsely must follow similar steps as are described as remedial measures in the Comments; i.e. first remonstrate with the witness to correct the testimony and upon failure of the witness to correct false testimony, to notify the court of the situation.
The requirement of Rule 3.3 extends through the “conclusion of the proceeding.” The Committee construes this requirement to include appeals of an underlying judgment and does not end with the trial itself. The Arizona Bar Association reached a similar conclusion in Opinion 05-05 citing “Hazard, The Law of Lawyering, § 29.23 (discussing analogous section of the Restatement (Third) of the Law Governing Lawyers (2000) which provides that duty of candor to the tribunal survives termination of the attorney-client relationship).” Otherwise, the prohibition in Rule 3.3 against a lawyer making a false statement of a material fact or offering evidence that the lawyer knows to be false would be but a hollow admonition where in the appellate proceeding the lawyer could use that false evidence to support the appeal either directly or through inference.
While these requirements direct your conduct when you know that perjury was used in a case you are handling, they provide little guidance when you are either unsure or only suspect that a witness offered perjured testimony. The Committee believes that the regulatory and aspirational goals of the Rules would not be satisfied if an attorney, who had reason to believe that a witness committed perjury in a matter the attorney handled, could simply ignore the bases for that suspicion and rely on the requirement of Rule 3.3 that the attorney’s obligation is triggered only if the attorney actually becomes assured of the perjury. Instead, the Committee concludes that an attorney, who has reason to believe that a witness who has offered perjured testimony on behalf of a client, must investigate the suspicion sufficiently to either rule out the perjury or to reach a conclusion that a reasonable person would not believe the witness lied. The investigation should be promptly commenced and concluded so as not to be used to avoid the attorney’s obligation by allowing the proceedings to conclude through a belated effort.
In this case, the Committee believes that you must contact the witness and determine whether the witness’ testimony (and recant) is more likely truthful or his statement to you that he lied under oath. If the latter, you must take appropriate remedial measures such as notifying the court of the likelihood of the witness’ perjury.
Opinions of the Committee may be obtained from the Committee’s website: www.msba.org.
We trust the foregoing is responsive to your inquiry.