The State Bar seeks public comment on Proposed Formal Opinion Interim No. 14-0004 (Witness Perjury).
Deadline: February 27, 2019
The State Bar Standing Committee on Professional Responsibility and Conduct is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 5.1, Article 2, Section 6(g) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. (See the Rules of Professional Conduct.) Proposed Formal Opinion Interim No. 14-0004 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 14 0004 considers: What are the attorney’s duties when the attorney suspects, but does not know, a client’s witness who is expected to testify at a civil trial has testified falsely, albeit favorably, for the attorney’s client at deposition? What are the attorney’s duties when the attorney knows, rather than merely suspects, the same witness has committed perjury and yet the client instructs the attorney to use the witness’s false testimony at the upcoming civil trial? The facts are the same as Issue #2, except the attorney first learns of the perjury after the witness has testified at trial. Thus, what are the attorney’s duties, if any, after a witness has committed perjury at trial but the client has instructed the attorney not to reveal the perjury?
The opinion interprets rules 1.6, 1.16, and 3.3 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068, 6106, and 6128.
The opinion digest states: Because an attorney must represent a client zealously, the attorney may offer testimony of questionable credibility; however, because of the duty of candor to the court, an attorney must not present or use testimony known to be false even if the client has instructed them to do so. If the testimony has already been offered, the attorney must take reasonable remedial measures to correct the record without violating the duty of confidentiality. If such measures fail, the attorney may have a duty to seek to withdraw from the representation.
At its October 19, 2018 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 14-0004 for a 90-day public comment period.
Proposed Formal Opinion Interim No. 14-0004
State Bar Standing Committee on Professional Responsibility and Conduct
February 27, 2019
Office of Professional Competence
State Bar of California
180 Howard St.
San Francisco, CA 94105