Ethics and the Law: Fast Answers for Serious Business - By Robert Pelton

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Tuesday, July 25th, 2017

When the ethics committee gets a question, it is sent out to all members of the committee. The answers are received promptly so the lawyer can get a fast answer. The following is a real question from a lawyer who called in, and these committee members gave fast answers. Everything we do is serious business.

Question

Attorney represents client at federal motion to suppress. His client testifies that the car which was the subject of the search belonged to him, in order to establish standing to object to the search. The judge denies the motion to suppress. The client pleads guilty, reserving his right to appeal the suppression issue.

Later, the client debriefs with federal prosecutors, with the usual document signed by all parties regarding confidentiality, information not to be used, etc. At the debriefing, the client admits he did not own the car. The case is now scheduled for sentencing.

What should the lawyer do? Withdraw now? Withdraw after sentencing? Divulge information from the debriefing, since it was a fraud on the court and the information was not privileged since there were others present?

Brent Mayr Answer

Comment 12 to DR 3.03, I believe, is as good as it gets. Because the disclosure that the vehicle was not his was not a confidential attorney communication, I think under the Rule that the attorney has to disclose it to the court.

Jimmy Ardoin Answer

I think the lawyer needs to inform the client of his duty of candor to the court and advise client that they need to correct the record on this. If client refuses to do so, then I think the lawyer needs to file a motion to withdraw now. The Government will also be bound by the disciplinary rules and will be obligated to inform the court either through a separate filing to correct the record or by disclosing to Probation for inclusion in the PSR. Client is therefore likely to receive a 2-pt enhancement under § 3C1.1 for Obstructing or Impeding the Administration of Justice. I don’t believe the lawyer can wait until after sentencing to withdraw if client does not consent to disclosing the truth to the court immediately.

I believe Rule 3.03(b) controls on this matter. It states: If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

I think the best course of action if client refuses to participate in correcting the record with the court is for the lawyer to file an ex-parte motion to withdraw informing the court of the false testimony that was given during the motion to suppress hear­ing. Further, Comment 12 of Rule 3.03 of the Disciplinary Rules states: The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take reasonable remedial measure which may include revealing the client’s perjury. A criminal accused has a right to the assistance of an advocate, a right to testify and a right of confidential communication with counsel. However, an accused should not have a right to assistance of counsel in committing perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law as well, to avoid implication in the commission of perjury or other falsification of evidence.

Michael Mowla Answer

What did he say exactly and what was his relationship to the owner of the car? One thing to consider that this was on the issue of standing. Even if he did not own the vehicle, if he was the driver but was in legitimate possession of the vehicle, he has standing to object to the search of the vehicle. See United States v. Arce, 633 F.2d 689, 694 (5th Cir. 1980). And if he did not own the vehicle, was a passenger in it, as a passenger he may challenge the stop. See Whren v. United States, 517 U.S. 806, 808–810 (1996), and Jackson v. Vannoy, 49 F.3d 175, 176 (5th Cir. 1995). Thus, ultimately, the perjury would have not made any difference, although I agree that it should be disclosed to the court.