Ethical Dilemma Facts: My Client, Justin King, Essay

Ethical Dilemma

Facts: My client, Justin King, has informed me that he was intoxicated on the date of an accident he had on his Harley. However, because he was unconscious after the accident, no tests were conducted to determine whether he was under the influence. Furthermore, his toxicology reports from Paxton Medical Center were apparently erroneously destroyed by the hospital as part of its standard document retention policy. Justin has told me that he intends to lie in the upcoming litigation if he is asked if he had any alcohol prior to the accident.

How should a legal team handle a client who has said that he intends to commit perjury? Does it make a difference that the evidence that could prove the client is lying either does not exist or has been destroyed, not by the client?

Reasoning: The ABA Model Rules specifically address the issue of client perjury. ABA Model Rule 3.3 talks about candor to a tribunal. It prohibits an attorney from knowingly offering false evidence. Specifically, Rule 3.3 provides that:

(a) A lawyer shall not knowingly:

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false (Rule 3.3(a)(3)).

Furthermore, Rule 3.3(b) provides that, "A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal" (Rule 3.3(b)).

However, lawyers can actually get in trouble for reporting that a client intends to commit perjury. Attorney-client communications are protected by confidentiality. While an attorney may reveal confidential client communications in certain situations, the fact that a client intends to commit perjury may not actually satisfy those conditions. Under Rule 1.6, an attorney may reveal confidential information to prevent a client from committing a "crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services" (Rule 1.6(b)(2). Rule 1.6 also permits an attorney to reveal confidential client information to comply with other laws or court orders (Rule1.6(b)(6)).

Analysis: While a client's stated intention to commit perjury indicates a willingness to commit a fraud and…