The State Bar seeks public comment on Proposed Revised Formal Opinion Interim No.14-0004 (Witness Perjury)
Deadline: September 3, 2019
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.In accordance with State Bar policy and procedure, the Committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
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. Information about the new rules is available at the State Bar website. 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? 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 known 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 gaining knowledge of the witness’s perjury at trial, the client nonetheless has instructed the attorney to continue to use the perjured testimony in the remainder of the trial?
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 vigorously represent a client, 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 perjured testimony known by the attorney to be false even if the client has instructed the attorney to do so. If the testimony known to be materially false 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 approved Proposed Formal Opinion Interim No.14-0004 for a 90-day public comment distribution. Subsequently, at its June 7, 2019 meeting, COPRAC revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No.14-0004 for an additional 60-day public comment distribution.
Proposed Formal Opinion Interim No. 14-0004
State Bar Standing Committee on Professional Responsibility and Conduct
September 3, 2019
Office of Professional Competence
State Bar of California
180 Howard Street
San Francisco, CA 94105