Liar, liar

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The Virginia State Bar is seeking comments on a proposal to relax ethics rules for a lawyer confronted with a client who wants to commit perjury.

Under the proposed rule changes, the lawyer would not have to immediately report the client’s plan to lie. In most circumstances, the lawyer would be allowed to withdraw before trial.

Another proposed change would limit the intended crimes a lawyer must report. With the change, only crimes likely to cause death or substantial bodily or financial harm would be reportable when a client threatens to go astray.

The changes seek to harmonize the applicable Rules of Professional Conduct and make them realistic, according to a summary from the VSB’s Standing Committee on Legal Ethics.

In fact, many criminal lawyers already consider the proposed revisions to be the state of the rules on how to handle a client who plans to go rogue, said VSB Ethics Counsel James M. McCauley.

Currently, Rule 1:6(c)(1) requires a lawyer to promptly reveal a client’s stated intention to commit a crime and information necessary to prevent the crime. As written, the rule expressly includes perjury by the client.

“Thus, a lawyer faced with a client who intends to commit perjury must proactively report the client’s stated intent in an effort to prevent the crime even after that lawyer is no longer representing that person,” the ethics panel wrote.

Moreover, the committee said, the lawyer would have to report the client’s intent before the false testimony ever happens, with no guidance as to when to report.

The requirements are inconsistent with comments to Rule 3.3 saying that withdrawal before trial is generally sufficient, the panel said.

The proposed change takes Rule 1.6 out of the picture entirely for the client who wants to lie on the stand, with only Rule 3.3 to govern the situation.

“We think 3.3 has it right,” McCauley said. “We think that’s the best answer, rather than treating client perjury as a future crime,” he added.

The revisions would not affect the current requirement that a lawyer try to change the client’s mind, something that probably happens more often than not.

The lawyer has a duty to attempt to persuade the client to abandon the intent to commit perjury by warning of the consequences, including the lawyer’s obligation to move to withdraw and to inform the court if the client lies on the stand.

McCauley discussed the state of the rules at a recent criminal law seminar where lawyers provided feedback through wireless devices. He said 85 percent thought the withdrawal option was the correct approach, or ought to be.

The attendees believed that, if the lawyer were permitted to withdraw before the client’s testimony, “the lawyer had fully discharged their obligations to the court because they were no longer in the case,” McCauley said.

Persuading would-be perjurers to change their plans should be easy in most cases, he said.

“It’s usually an abomination for the client if they get on the stand and give false testimony,” he said. “It never works out well.”

Even with a rule change on the lying client, the scope of a lawyer’s duty to report intended crimes was seen as too broad, the VSB ethics panel concluded.

Taken literally, current Rule 1.6(c)(1) would require a lawyer to report any intended criminal act, including fishing without a license.

The ethics committee proposes limiting the reporting duty to crimes that are “reasonably certain to result in death or substantial bodily harm to another or substantial injury to the financial interests or property of another.”

The proposed changes are described and set out on the VSB’s website at www.vsb.org/.

Written comments on the proposed amendments should be directed to VSB executive director Karen A. Gould at [email protected] by March 4.