Podcast - The Four Horsemen of the Lying Witness Apocalypse
In the second episode of his "Ethical Witness Preparation" podcast series, "The Ethical Witness: The Four Horsemen of the Lying Witness Apocalypse," litigation attorney Dan Small examines four strategies attorneys can use to avoid the perjury dilemma. He breaks down the pros and cons of each of these "Four Horsemen" — persuasion, narrative, withdrawal and disclosures — as well as explains how other states and courts have approached them.
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The extreme problem in ethical witness preparation is actually the one we discussed in the first episode of this mini series... The perjury dilemma. The client who lies or intends to lie. This dilemma arises from the conflict between a lawyer's obligations to represent the client zealously and preserve client confidences, and the obligation to preserve the court's integrity.
Four Horsemen of the Lying Witness Apocalypse
The search for a way out of this dilemma has involved what I call the "Four Horsemen of the Lying Witness Apocalypse:"
Let's look at each of these Four Horsemen and the pros and cons of each option.
The first is persuasion. Without question, counsel has an obligation to try to persuade the client to tell the truth. One of the most instructive cases on this point remains the Supreme Court's 1986 opinion in Nix v. Whiteside. Whiteside, a defendant in a criminal trial, told his lawyer he wanted to take the stand and tell a false story. His lawyer told him that would be perjury, and the lawyer would have to advise the court or seek to withdraw. Whiteside heeded the warning, and did not take the stand and was convicted. Surprisingly, the Eighth Circuit Court of Appeals reversed the conviction, agreeing with the defendant that he had been denied effective assistance of counsel under the Sixth Amendment because of the lawyer's actions. The Supreme Court reversed the Eighth Circuit and reinstated the conviction. The Court held that "the attorney's first duty when confronted with a proposal for perjurous testimony, is to attempt to dissuade the client." More fundamentally, the Court also held, "the right to counsel includes no right to have a lawyer who will cooperate with planned perjury." In short, it found that the attorney's efforts were appropriate. Persuasion worked in that instance, but what happens when it doesn't?
The second horseman is narrative. The idea of a narrative is to try and take the attorney, as an officer of the court, out of the picture. The attorney allows the client to take the stand but simply stands mute while the defendant tells a false story. Superficially, it seems like an easy way out. The defendant gets their "Day in Court," and the attorney does not actively assist in perjury. In reality, though, it is an endless minefield. An attorney is still an officer of the court, offering the client to the jury, presenting evidence and arguing the case. The Supreme Court in the Nix case discussed the "narrative" approach in a footnote. It found that "Most courts treating the subject rejected this approach and insisted on a more rigorous standard." For good reason.
The third horseman is withdrawal. For many, the last best resort when faced with a lying client is to withdraw from the case. Once again, that takes the attorney, as an officer of the court, out of the picture. An attendee at one of the CLE programs I give around the country offered a good response to this when she said, "Only attorneys would think that perjured testimony is an attorney problem!" She's right. Perjured testimony is a problem for the courts and our system of justice, not just for attorneys. A 2010 New York Ethics opinion agreed, finding that counsel's withdrawal may actually increase the risk and damage of perjured testimony. After all, if ethical counsel withdraws, the client who intends to lie may either
1) not be as open with new counsel, so they don't "know" about the perjury, or
2) find more willing counsel, like the lawyer we talked about in the first episode of this topical series.
Counsel may have escaped the dilemma, but not the courts. The result of withdrawal is perjured testimony, with even less hope of remedy.
The fourth horseman is disclosure. We try to protect the attorney-client privilege fiercely — as we should. The power of the privilege has been so strong that disclosure to the tribunal was once a "Thou Shalt Not," even with perjured testimony. However, that can leave a serious threat to our system of justice with no adequate remedy. Sooner or later, the protections of the attorney-client privilege may have to yield to the dangers of perjured testimony. In New York, as in other states, the perspective has shifted from the traditional abhorrence for disclosure. A 2010 Ethics Opinion states, "A lawyer who comes to know that a client has lied about a material fact in a deposition...must...if necessary, disclose to the tribunal." It also reminds us that "you never really know" is not an easy way out: "Actual knowledge...may be inferred substantially." There are no easy answers to the perjury dilemma. All the more reason, then, not to underestimate the power of persuasion. However, persuasion for most clients has to be both ethical and practical. You have to tell them, "It's the right thing to do," as well as, "It's the smart thing to do."
Here are a couple of approaches to this conversation:
- You're not as good a liar as you think you are.
- These are not "little white lies."
- This is lying under oath.
- There are endless examples, many of them in the media, of people getting into more trouble for the "cover-up" than for the underlying conduct. Just a few examples: President Nixon, President Clinton and Martha Stewart. Don't join them.
Many lawyers never have to encounter the perjury dilemma, and all lawyers hope they never will. But just because it hasn't happened to you yet, doesn't mean it won't. Hope for the best, but plan — and study — for the worst.