When Clients Lie…What Must You Do?

CRIMINAL DEFENSE FORUM
By: Mark Eiglarsh

One of your clients has stated repeatedly, "Just put me on the stand and I'll lie my way to an acquittal." Let's assume that you are 100% certain that your client intends to follow through with his promise to lie on the stand if called to testify. What must you do?

If a lawyer is certain that his client intends to commit perjury, the lawyer must first attempt to persuade the client to testify truthfully. If the client still intends to lie, the lawyer must threaten to reveal the client's intent to commit perjury to the judge. If the threat of disclosure does not alter the client's plan, then the lawyer must do whatever is necessary to prevent the commission of perjury by his client, including, but not limited to, disclosing his client's intent to lie to the judge.

A client that you're defending was arrested and booked under the name, "Benjamin Franklin." Throughout your representation, you hear several of his friends and relatives call him, "Sean." One day, you ask your client why people frequently refer to him as "Sean" as opposed to "Benjamin." Your client candidly reveals to you that "Benjamin" is not his real name. He explains that he provided the arresting officer a fake name in an attempt to conceal the fact that he had an arrest record dating back to the "Disco Crisis." As his attorney, must you inform the court? Additionally, are you ethically obligated to reveal to the court your client's true identity?

A criminal defense attorney, who learns that his client, a defendant in a criminal proceeding, is using an alias, may not inform the court of same. The reasons why the attorney shall not reveal his client's fake name to the court includes: The attorney-client privilege, the client's constitutional privilege against self-incrimination, and the client's constitutionally guaranteed right to effective assistance of counsel.

However, an attorney must take action when their client is involved in an activity that would constitute commission of a crime or a fraud on the court. For example, if the client desired to testify at trial and insisted upon using his false name, then the attorney must advise the client that the attorney cannot aid the client in testifying unless the client is willing to divulge that the name under which the client was charged is not his real name. The attorney is obligated to attempt to persuade the client to respond to any questions truthfully or by asserting an appropriate privilege.

If the client is successful in making a material misrepresentation to the court concerning his true identity, either during a trial or during any court proceeding, the attorney is obligated to take "reasonable remedial measures" to remedy the fraud on the court. Initially, an attorney must attempt to persuade the client to rectify the misrepresentation. If that fails, then the attorney must seek to withdraw, assuming that would remedy the situation. Because withdrawal will rarely remedy the fraud, the attorney may have to remedy the fraud on their own, assuming the client refuses to do so.

If the court asks the attorney and/or the client any questions concerning the client's identity and/or prior record, they may answer truthfully only after the client decides, after consultation with counsel, that doing so is in his or her best interest. The client may also choose to decline to answer based on any applicable privilege.

A client that you're representing states, during her deposition, that she was "far away" from the crime scene on the day that the victim was shot. In fact, she states further that she was in California during the shooting, attending her cousins' graduation. You learn after the deposition that your client intentionally lied. The case is still pending. What, if anything, are you obligated to do?

Once an attorney learns that his client intentionally committed perjury during a deposition, he must immediately attempt to persuade that client to reveal the fraud to the court. If the client refuses to remedy the fraud herself, the attorney must withdraw from representation and must disclose the perjury committed by his client to the court.

Mark Eiglarsh is a former prosecutor who specializes in exclusively State and Federal criminal defense and forfeiture matters. An "AV Rated" attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at Mark@EiglarshLaw.com. His web address is www.EiglarshLaw.com.