1 For a discussion of the Kutak Commission Report, see Report of the MSBA Committee to Study the Kutak Commission Report, George C. King, Chairman, 37 Bench & Bar of Minn. 63–89 (July/Aug. 1980).Google Scholar

2 American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980) [hereinafter cited as the Kutak-ABA proposal]. The Commission is chaired by Robert J. Kutak of Omaha, Nebraska, by whose name the Commission is often popularly referred to. The Commission has held hearings around the country and has widely solicited commentary. The announced program of the Commission is to redraft its proposal for release to the public in May 1981. see also Granelli, James S., Bar Parley: Hot Issues Put on Ice, Nat'l L.J., Aug. 18, 1980, at 6, col. 1.Google Scholar

3 See, e.g., Association of Trial Lawyers of America Annual Convention, 49 U.S.L.W. 2075 (July 29, 1980) (report of endorsement by ATLA Board of Governors of opposition to Kutak Commission proposal because of its decreased protection of client confidentiality); Richard E. Gerstein & Marcia Christensen, Criminal Justice: New Criminal Code and Jury Reform Backed, Nat'l L.J., Aug. 4, 1980, at 28, col. 3, col. 4 (opposition to Kutak Commission's criminal defense client perjury rules on part of ABA Criminal Justice Section); Leonard H. Gilbert, General Practice: Challenges to Define Role of the Lawyer, Nat'l L.J., Aug. 4, 1980, at 41, col. 1 (opposition of ABA Section of General Practice to substantial portions of Kutak Commission proposal).Google Scholar

4 See, e.g., Philip M. Stern, Lawyers and Ethics, N.Y. Times, Aug. 4, 1980. at A21, col. 2; 48 U.S.L.W. 2805 (June 10, 1980) (United States Attorney General communication to Kutak Commission urging strengthening of rule [1.7(c)(2)] on discretionary reporting of “deliberately wrongful act” by client to require attorney withdrawal if discretionary disclosure is not made).Google Scholar

5 Kutak-mA proposal, Rule 1.7(b) (lawyer must disclose information appearing necessary “to prevent the client from committing an act that would result in death or serious bodily harm to another person” and to the extent otherwise required by law or other rules); id., Rule 4.2(b) (disclosures mandated in course of serving as negotiator for client).Google Scholar

6 Id., Rule 1.7(c) (disclosure permitted “to the extent it appears necessary to prevent or rectify the consequences of a deliberately wrongful act by the client” unless attorney has been employed after the act occurs to represent the client concerning it); id., Rule 1.13(c) (attorney for entity such as a corporation or a union may make public disclosure of client confidences in order to remedy action or inaction of highest authority of organization that is clearly a violation of law).Google Scholar

7 Id., Rule 4.2(b).Google Scholar

8 Id., Rule 3.l(b).Google Scholar

9 See Koskoff, Theodore I., Introduction, in Commission on Professional Responsibility, Roscoe Pound-American Trial Lawyers Foundation, The American Lawyer's Code of Conduct ii (Public Discussion Draft, Washington, D.C.: Roscoe Pound-American Trial Lawyers Foundation, June 1980).Google Scholar

10 See American Lawyer's Code of Conduct, supra note 9. The June 1980 draft was authored by Monroe H. Freedman and is said to reflect extensive comments by the members of the ATLA Commission on Professional Responsibility, but has not been finally approved by it [hereinafter cited as the Freedman-ATLA proposal]. Id. at copyright page; Irwin Birnbaum, Preface, in id. at 1.Google Scholar

11 See, e.g., Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966); Id., Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs–Merrill Co., 1975).Google Scholar

12 No extant American authority has been discovered that purports to require attorney participation in the undisclosed presentation of client perjury in a civil case. See text at note 77 infra. Google Scholar

13 See Freedman-ATLA proposal, Rule 1.2; id., Illustrative Cases l(b), I(i), 6(a).Google Scholar

14 See id., Comment, at 104–7.Google Scholar

15 Kutak-ABA proposal, Rule 3.l(a)(3). A further provision in the same rule is that the lawyer may not “offer without suitable explanation evidence that the lawyer knows is substantially misleading.”Google Scholar

16 Id., Rule 3.l(b).Google Scholar

17 See id., Rule 1.4(b); id., Comment, Ethical limitations, at 14.Google Scholar

18 See id., Rule 2.4 and Comment.Google Scholar

19 Id., Rule 2.3(a)(2).Google Scholar

20 Cf. id., Rule 1.16(a)(1); Comment, Mandatory withdrawal, at 51; Comment, Appointed counsel, at 49. The Kutak-ABA draft states the mandatory withdrawal obligation in a needlessly obscure way. See infra at note 37.Google Scholar

21 See id., Rule 3.l(f)(2) and (3). The “applicable law” refers to doubts about the constitutionality of these courses of action in criminal cases in light of possible due process and right to counsel requirements. See id., Comment, at 66.sGoogle Scholar

22 See Koskoff, , supra note 9. Freedman had been invited to participate in general public discussions on confidential drafts of early versions of the Kutak Commission on client perjury at the August 1979 meeting of the ABA. His denunciation of any disclosure requirement was well publicized, as was the “leak” of the text of the Commission's until then confidential draft. See, e.g., Jonathon M. Winer, Radical Proposals Unveiled After 2-Year Study–-Ethics Draft Ignites Uproar, Nat'l L.J., Aug. 27, 1979, at 1. col. 1; 48 U.S.L.W. 2152 (Aug. 28, 1979); Monroe H. Freedman, Ethics and Confidentiality (letter to editor), Nat'l L.J., Sept. 10, 1979, at 14, col. 3; The Ethics of Secrecy (editorial), Nat'l. L.J., Sept. 3, 1979, at 16, col. 1. The “leaked” confidential draft was widely printed in the legal press. E.g., The Record: Text of Initial Draft of Ethics Code Rewrite Committee, Legal Times of Washington, Aug. 27, 1979, at 26, col. 1; BNA Daily Report to Executives, Special Supplement to Release No. 46 (Aug. 21, 1979).Google Scholar

23 See Freedman-ATLA proposal, at 8–9 for its definition of “knowing.”Google Scholar

24 Id., Rule 3.7.Google Scholar

25 This is unequivocally clarified under Freedman-ATLA proposal, Comment, at 603–4. See also id., Illustrative Cases 6(a), 1(j).Google Scholar

26 And an “indirect” divulgence may be authorized, although not required, in a case where the client has deceived the lawyer about the intent to commit perjury. See infra at note 29.Google Scholar

27 See Freedman-ATLA proposal, Rule 1.2; id., Illustrative Cases l(a), l(b), l(c), I(i), and 1(j).Google Scholar

28 Cf. id., Comment, at 104 (describing the practice of “advising clients that a particular course of conduct should not be followed on grounds of legality or morality”). Because of the importance attached to avoiding withdrawal (see id., Comment, at 603–4), it would seem necessary at least that the client be warned of the attorney's obligation to withdraw if the client persists in demanding to present perjury. See infra note 38.Google Scholar

29 A curious, and unclear, distinction between civil and criminal cases is contained in Freedman-ATLA proposal, Rule 6.5. This provides that “in any matter other than criminal litigation, a lawyer may withdraw from representing a client if the lawyer comes to know that the client has knowingly induced the lawyer to take the case or to take action on behalf of the client on the basis of material misrepresentations about the facts of the case, and if withdrawal can be accomplished without a direct violation of confidentiality” (emphasis added). This is elaborated upon in id., Comment, at 603, at a point immediately preceding a discussion of mandatory withdrawal when feasible and when a client intends to commit perjury: “It should also be noted that Rule 6.5 allows indirect divulgence of confidences by withdrawal from a class of cases also covered by Rule 6.6 [the rule under which intended-perjury withdrawal is mandated], those noncriminal matters where the client has knowingly induced the lawyer either to take the case, or to take action on the client's behalf, on the basis of material factual misrepresentations” (emphasis added).Google Scholar

As applied to client perjury, this would appear to mean that a lawyer in a civil case may (but is not required to) withdraw, even if this will indirectly reveal to opposing counsel or to the fact-finder (if a judge) that the client is committing perjury, if the client also, initially, deceived the lawyer with the same perjury. Deception of one's own lawyer, even if later corrected, is thus exalted over deception of any other person or institution. This supplies discretionary self-protective cover for the same lawyer who, at least under one Freedman-ATLA version (Alternative B), would not even be required to reveal a clear and present client intent to murder an identified third party victim (cf. id., Illustrative Case l(g)).Google Scholar

30 See text at note 77 infra. Google Scholar

31 A persistent criticism of the existing Code of Professional Responsibility has been that it deals with the problem of client perjury in a confusing, obscure, and convoluted manner. See, e.g., Charles W. Wolfram, Client Perjury, 50 S. Cal. L. Rev. 809, 819–22 (1977); Victor H. Kramer, Clients' Frauds and Their Lawyers' Obligations: A Study in Professional Irresponsibility, 67 Geo. L. J. 991 (1979); Comment, The Failure of Situation-oriented Professional Rules to Guide Conduct: Conflicting Responsibilities of the Criminal Defense Attorney Whose Client Commits or Intends to Commit Perjury, 55 Wash. L. Rev. 211 (1979).Google Scholar

32 Freedman-ATLA proposal, Illustrative Case I(i).Google Scholar

33 Kutak-ABA proposal, Rules 3.l(a)(3), 3.l(b).Google Scholar

34 Id., Comment, at 61–66, 67–68; Freedman-ATLA proposal, at 106.CrossRefGoogle Scholar

To the extent that perjured testimony is presented through a government lawyer, such as the prosecutor in a criminal case, both proposals agree that the disclosure requirement is quite strict. See Kutak-ABA proposal, Rule 3.10(d) (prosecutor has duty to seek all evidence, whether or not favorable to accused, and to make “timely disclosure to the defense of all evidence supporting innocence or mitigating the offense”); Freedman-ATLA proposal, Rule 9.7 (prosecutor shall volunteer to the defense “any information that the prosecutor knows is likely to be useful to the defense”). Even more broadly, the Freedman–ATLA proposal would require any lawyer representing the government in court to “inform the tribunal of any facts or legal authorities that might materially affect the decision in the case, and that have not been brought to the attention of the tribunal by other counsel.”Id., Rule 9.10. Compare Kutak–ABA proposal, Rule 3.l(c) (mandatory disclosure of legal authority in all cases for all lawyers); Rule 3.1(e) (discretion in all cases to disclose evidence favorable to other side).Google Scholar

35 See Kutak-ABA proposal, Rule 3.l(a)(3) (evidence falsity must be such that the “lawyer is convinced beyond a reasonable doubt”) (emphasis added). If the lawyer's conviction is less than that, a further provision permits, but does not require, refusal to participate in offering the evidence. Id., Rule 3.l(e) (“evidence that the lawyer believes with substantial reason to be false”) (emphasis added). The required state of attorney knowledge is somewhat confusingly referred to in the Kutak Commission Comments in terms of what is “known,” the lawyer's being “satisfied” the evidence is false, the necessity for a “reasonable investigation” to clarify its status, and whether falsity is “quite clear.” See id., Comment, at 63.Google Scholar

36 The Freedman-ATLA proposal contains an extensive Introductory Comment defining “knowingly.” See Freedman-ATLA proposal at 8–9. The “convinced beyond a reasonable doubt” standard of the Kutak Commission that is explicitly applicable to client perjury is apparently less inclusive than the Freedman-ATLA definition of “knowingly”: “As used herein, a lawyer knows certain facts, or acts knowingly or with knowledge of facts, when a person with that lawyer's professional training and experience would be reasonably certain of those facts in view of all the circumstances of which the lawyer is aware.” Freedman-ATLA proposal, at 9 (emphasis added). Unlike the Kutak-ABA proposal, no duty to investigate or inquire is implied; but “a studied rejection of reasonable inferences is inadequate to avoid ethical responsibility.”Id. The same comment at an earlier point specifically rejected arguments that a lawyer does not often “know” that a client's testimony is perjured. Id. at 8.Google Scholar

37 The Kutak-ABA proposal does not mention mandatory withdrawal at any point in its rules or commentary on client perjury. Cf. Kutak-ABA proposal, Comment, at 64 (mention of whether attorney whose client intends to commit perjury is “able” to withdraw). But id., Rule 1.16(a)(l) on mandatory withdrawal provides that, unless a court forbids it, a lawyer “shall withdraw” if “continuing the representation will result in a course of conduct by the lawyer that is illegal or inconsistent with the rules of professional conduct.” Then, under the heading of “Mandatory withdrawal,”id., Comment, at 51, the need for court approval for withdrawal in a court-appointed case is discussed in these terms:Google Scholar

This strongly implies that withdrawal is mandatory in all civil and criminal cases in which the client demands that the lawyer present perjured testimony.Google Scholar

Integration and clarification of the Kutak Commission's treatment of client perjury and mandatory withdrawal obviously seems desirable. In the first place, if withdrawal is mandatory when a client insists on presenting perjured testimony, this should be made more explicit than is stated in the present Rule and Comment. As Rule 1.16(a)(l) is presently drafted, it is not clear why withdrawal is required under it when the client “demand[s] that the lawyer engage in unprofessional conduct, such as the presentation of perjured testimony.” (Id., Comment, at 51.) The demand presumably will not be availing because of the lawyer's duty under the antiperjury rules to refuse to participate in it and, if perjury nonetheless is presented, to rectify it through disclosure. The duty could be clarified by adding at the end of Rule 1.16(a)(l) the words “or the client insists that the lawyer engage in such a course of conduct.” In the second place, the rules on mandatory withdrawal should be explicitly referenced in the Comment on client perjury under Rule 3.1. It should also be clarified to what extent the disclosure/rectification rules still apply after effective withdrawal.Google Scholar

38 The matter of withdrawal is mentioned only in a general way in the Freedman-ATLA Comment on confidentiality and it somewhat misleadingly fails to mention the mandatory withdrawal rule for client perjury cases. See, id., Comment, at 106 (“Also, withdrawal is permitted in non-criminal cases, even when a confidence might thereby be divulged indirectly, when the client has induced the lawyer to act through material misrepresentation (Rule 6.5)”). A rule other than that mentioned in the confidentiality comment–-Rule 6.6 as interpreted in Comment, at 603–44–-is explicitly stated to require withdrawal so long as no divulgence of a client confidence would result. Rule 6.6 provides: “A lawyer shall decline or withdraw from representing a client when such action is necessary to avoid commission by the lawyer of a disciplinary violation, unless such action would result in a violation of Rule 1.2, proscribing direct or indirect divulgence of a client's confidences.” This is interpreted as follows in the Comment, id., at 603–4: “A lawyer is forbidden by Rule 3.7 to knowingly present false evidence. Therefore, withdrawal from representation would be required by Rule 6.6 when the lawyer knows through a confidence that the client intends to present false evidence, and when withdrawal would not result in violating a confidence. When the lawyer's refusal to present false evidence would result in violating a confidence, however, Rules 1.2, 3.7, and 6.6 require the lawyer to continue in the case.”Google Scholar

39 Presumably an attorney's violation of the Freedman-ATLA obligation to withdraw would not be remitted by the fact that the lawyer's failure to withdraw continues until so late that withdrawal without divulgence was no longer available.Google Scholar

40 See Kutak-ABA proposal, Comment, at 63–64 (civil case), 64–66 (criminal defense).Google Scholar

41 See id., Rule 1.4(b); id., Comment, at 14.Google Scholar

42 Freedman has previously asserted that a lawyer should attempt to persuade a client not to present perjured testimony. See Freedman, Lawyers' Ethics in an Adversary System, supra note 11, at 28, 29, 31. As a matter of competence, an attorney may also be required to warn a client that perjury is a crime. See note 28 supra. Google Scholar

Under the ATLA proposal, suppose that a client in a civil case proposes to commit perjury by telling a false story in a quite implausible way (and assume further that withdrawal would divulge a client confidence). Competent representation, it may be thought, would require that the lawyer advise the client that the story would be regarded as implausible by the jury. May the lawyer do so? May–-or must–-the lawyer, if requested by the client (or perhaps if not requested), inform the client of other, better ways to tell the lie? Freedman-ATLA proposal, Rule 3.6, which seems not to be the subject of any commentary or illustration, states: “A lawyer shall not knowingly participate in creating perjured testimony, other false evidence, or a misrepresentation upon which another person is likely to rely and suffer material detriment.” It is utterly unclear whether this would subject to discipline a lawyer who informs the client that the proposed lie is implausible or who goes further and “coaches” the client on a still perjured, but more plausible, story. In addition to the Freedman-ATLA rules and comments dealing specifically with perjury, compare id., Rule 3.2 (“A lawyer shall fully inform the client of a client's rights and possible courses of conduct regarding issues of substantial importance to the client, except … as provided in Rule 3.3”) and Rule 3.3 (“A lawyer shall not advise a client about the law when the lawyer knows that the client is requesting the advice for an unlawful purpose likely to cause death or serious physical injury to another person”). The integration of these rules with, particularly, id., Rule 3.6 is quite unclear in the context of the problem of preparing a client for future perjured testimony.Google Scholar

43 Id., Rules 4.1–4.7.Google Scholar

44 The right of the accused effectively to take the stand to testify perjuriously over the wishes of defense counsel has not been settled by the Supreme Court. See infra at note 76.Google Scholar

45 Kutak-ABA proposal, Rule 1.3.Google Scholar

46 Id., Rule 1.3(b). The rule violated would be Rule 3.l(a)(3).Google Scholar

47 A contrary position may be implied by Freedman-ATLA proposal, Illustrative Case I(j), which states that it is not a disciplinary violation for a lawyer to present “in the ordinary manner” client testimony known in advance to be perjured. The illustration could be limited, although not with a great range of remaining applicability, to situations in which failure to call the client as a witness would divulge a confidence–-for example, where the lawyer had already announced the intention to call the client as a witness before the client's intent to commit perjury was revealed to the lawyer.Google Scholar

48 This is stated nowhere in the draft, but any other rule would be nonsensical in light of the clearly stated obligation to reveal client perjury. Kutak-ABA proposal, Rule 3.l(b). A rule against asking such a question was probably thought to be within the prohibition in Rule 3.l(a)(3) against an “offer” of evidence known to be false.Google Scholar

49 See Freedman-ATLA proposal, Illustrative Cases 1(i), 1(i).Google Scholar

50 See supra at note 48.Google Scholar

51 Most in point appears to be Freedman-ATLA proposal, Illustrative Case l(i), which is transparently an explicit rejection of the approach recommended in § 7.7(c) of the ABA'S Defense Function Standards. See American Bar Association, Special Committee on Standards for the Administration of Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, at Defense Function § 7.7(c) (Approved Draft Chicago: American Bar Association, 1971). After setting out a factual situation that tracks the procedure in § 7.7(c), the Illustrative Case l(i) concludes that the lawyer, in the manner of final argument, has committed a disciplinary violation.Google Scholar

52 Kutak-ABA proposal, Rule 3.l(b). Disclosure of perjury for a purpose other than to rectify its effect in the immediate case has not been required by any case that has been found. It has been argued for by one commentator. See Dan Aaron Polster, The Dilemma of the Perjurious Defendant: Resolution, Not Avoidance, 28 Case W. Res. L. Rev. 3, 34 (1977) (lawyer should warn client that lawyer “would be a chief witness in the client's subsequent perjury trial”). Contra, Robert P. Lawry, Lying, Confidentiality, and the Adversary System of Justice, 1977 Utah L. Rev. 653, 678–80.Google Scholar

53 Kutak-ABA proposal, Rule 3.l(b). While nowhere mentioned explicitly, it appears that the sense of the rule would not require disclosure if the perjured testimony–-for example, from a turncoat witness–-is disadvantageous to the lawyer's client.Google Scholar

54 Freedman-ATLA proposal, Rule 1.2; id., Illustrative Case 1(b) (factually this appears very similar to Committee on Professional Ethics v. Crary, 245 N.W.2d 298 (Iowa 1976); the result, however, is contrary). An example of prohibited indirect disclosure is given in Freedman-ALTA proposal, Illustrative Case 1(j).Google Scholar

55 The major authorities are collected in the References to the Kutak-ABA proposal, Comment, at 68. Among others, the following major treatments of the problem have appeared since the Kutak-ABA references were apparently collected: Wayne D. Brazil, Unanticipated Client Perjury and the Collision of Rules of Ethics, Evidence, and Constitutional Law, 44 Mo. L. Rev. 601 (1979); Kramer, supra note 31; Comment, supra note 31.Google Scholar

Philosophers have also contributed significantly to an understanding of the problem of lawyer representation of clients who commit perjury. See, e.g., Sissela Bok, Lying: Moral Choice in Public and Private Life, 146–64 (New York: Pantheon Books, 1978).Google Scholar

56 See authorities cited in note 31 supra. Google Scholar

57 The 1974 amendment to DR 7–102(B)(1) excepted from its requirement that a lawyer disclose a client's “fraud upon a person or tribunal” those instances where the lawyer's information came through a “privileged communication.” The ABA ethics committee subsequently interpreted this exception in a very expansive way. ABA Formal Opinion 341 (Sept. 30, 1975), in American Bar Association, Committee on Ethics and Professional Responsibility, Recent Ethics Opinions, Sept. 30, 1975 [looseleaf]. With the disclosure requirement of DR 7–102(B)(1) thus rendered virtually inoperative, the remaining applicable rule is DR 4–101(B)(l) which prohibits a lawyer from disclosing any client confidence or secret.Google Scholar

58 See American Bar Association Project, supra note 51, at Defense Function § 7.7(c). The Defense Function solution has not found wide acceptance. Basically, it requires the criminal defense lawyer confronted with client perjury to put the client under open narrative and not ask specific questions or argue the credibility of the client's perjured testimony in summation. But the Standards forbid the lawyer to disclose the client's perjury. Why judges, all of whom were urged to become familiar with the Standards, would remain in doubt about the lawyer's disbelief of the client's testimony when given under this rare rubric was unexplained. And defense attorneys were not told how to proceed in the event that the prosecutor successfully objected to the open narrative form of testimony. See Wolfram, supra note 31, at 83–27.Google Scholar

59 If the facts were available to sustain it, a valid claim could be stated in many jurisdictions for the recovery of damages against an attorney who knowingly participates in the presentation of perjured testimony. Cf. Scavello v. Scott, 549 P.2d 1337 (Colo. App. 1976); Meier v. Pearlman, 401 N.E.2d 31, 40–41 (Ind. App. 1980); McDonald v. Stewart, 289 Minn. 35, 182 N.W.2d 437, 440 (1970) (dictum in each case: facts in cases do not support finding of knowing attorney participation). At least Colorado and Minnesota have adopted the amendment to DR 7–102(B)(1) that removes the permission for disclosure of client perjury. Similarly, it is unclear to what extent an attorney who knowingly elicits perjured testimony is susceptible to the criminal charge of subornation of perjury. See authorities cited in Wolfram, supra note 31, at 816–17 11.23. Cf. Office of Disciplinary Counsel v. Pileggi, 570 F.2d 480 (3d Cir. 1978) (per curiam) (discipline of attorney convicted of subornation of perjury of client despite belief that informing court would betray client's confidence).Google Scholar

60 E.g., Thomas D. Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702 (1977): Charles W. Wolfram, Barriers to Effective Public Participation in Regulation of the Legal Profession, 62 Minn. L. Rev. 619, 634–36 (1978). A recently funded research project of the Rand Corporation will study the ability of the legal profession to regulate itself effectively. See Burke, Edward J., Insurance Industry Role Raises Issue of Bias–-Rand Unit to Examine Civil Justice, Nat'l L.J., Mar. 17, 1980, at 4, col. 2.Google Scholar

61 The ATLA Commission included nonlawyer members (see Freedman-ATLA proposal, at v.); the Kutak Commission had one. While nonlawyers have been appointed with some regularity to lawyer discipline boards (see More States Adding Public to Discipline Boards, Nat'l L.J., June 25, 1979, at 7. col. 1 (public participation in 23 states)), the public still seems largely excluded from effective decision-making roles in the development of lawyer codes. See Wolfram, supra note 60.Google Scholar

62 Kutak-ABA proposal, Comment, at 62–64.Google Scholar

63 Freedman-ATLA proposal, Preamble, at 5–6.Google Scholar

64 See Wolfram, , supra note 31, at 813 n.14.Google Scholar

65 Critics of proposals for some forms of attorney participation in client perjury have urged that if such a role were permitted the jury should be informed that lawyers were under no obligation to prevent perjury so that the jury could more fully assess the credibility of witnesses. See, e.g., Abraham P. Ordover, The Lawyer as Liar, 2 Am. J. Trial Advocacy 305, 315–317 (1979).Google Scholar

66 E.g., the police don't arrest people who aren't guilty; pushy big-city people are always trying to rip off insurance companies; I never met a Welshman who wasn't a thief; lawyers help other people to lie so why should anybody believe them when they testify themselves; etc.Google Scholar

The deterioration of the jury function because of jurors' awareness of lawyer cooperation in the presentation of perjury has been cited as an argument against such lawyer conduct. E.g., Bok, supra note 55, at 163; Ordover, supra note 65. Social scientists report that subjects of social science experiments have shown an increasing tendency to suspect that experimenters will employ deception, and they react to their belief of deception in a way that makes the experiment results potentially quite misleading. See Edward Diener & Rick Crandall, Ethics in Social and Behavioral Research 82–84 (Chicago: University of Chicago Press, 1978).Google Scholar

67 The double jeopardy clause would prevent the retrial. U.S. Const. Amend. V.Google Scholar

68 See generally Annot., 89 A.L.R.3d 1098 (1979). Cf. Ashe v. Swenson, 397 U.S. 436 (1970) (applicability to states of constitutionally based doctrine of collateral estoppel in criminal case).Google Scholar

69 E.g., Smith v. Sinclair, 424 F. Supp. 1108 (W.D. Okla. 1976); Reagan v. Guardian Life Ins. Co., 140 Tex. 915, 166 S.W.2d 909 (1942); see generally 60 Am. Jur. 2d, Perjury § 75 (Rochester, N.Y.: Lawyers Co-operative Publishing Co., 1972).Google Scholar

70 Kutak-ABA proposal, Comment, at 22–23.Google Scholar

71 Freedman-ATLA proposal, Comment, at 104–7.Google Scholar

72 These considerations underlie both the attorney-client testimonial privilege and the broader rule of professional conduct that protects against disclosing a great amount of information that is not covered by the narrower testimonial privilege. See Kutak-ABA proposal, Rule 1.7(a); Freedman-ATLA proposal, Comment, 104–5. The Freedman-ATLA Comment, id., is rather vague about the intended reach of a “confidence” but it is apparently extremely broad: “any information obtained by the lawyer in the course of the lawyer-client relationship.”Google Scholar

73 See, e.g., Brazil, supra note 55, at 623–24; Wolfram, supra note 31, at 840–42.Google Scholar

It is questionable whether the right-to-counsel argument would fare any better in the Supreme Court than have other arguments that, broadly speaking, have claimed a variety of constitutional immunities from impeachments of arguably perjured testimony by the accused. One counterargument to the Sixth Amendment position would be based on Walder v. United States, 347 U.S. 62 (1954); Harris v. New York, 401 U.S. 222 (1971); and Oregon v. Hass, 420 U.S. 714 (1975), holding that evidence or statements of the accused that had been illegally obtained could nonetheless be used as evidence by the prosecution to rebut testimony given by the defendant. See also United States v. Havens, 100 S. Ct. 1912 (1980). In these cases the Court based its result in part upon a rationale that the exclusionary rules should not be “perverted into a license to use perjury by way of a defense.” Harris v. New York, 401 U.S. at 226; Oregon v. Hass, 420 U.S. at 721–22; United States v. Havens, 100 S. Ct. at 1916. See also United States v. Salvucci, 100 S. Ct. 2547, 2554 (June 25, 1980) (Court has not yet decided whether testimony of accused at preliminary suppression hearing, which is ordinarily not admissible as evidence of guilt under Simmons v. United States, 390 U.S. 377 (1968), can be used solely for impeachment); Jenkins v. Anderson, 100 S. Ct. 2124 (June 10, 1980) (Fifth Amendment right to remain silent is not infringed by use of prearrest silence of accused to impeach credibility of defendant who elects to testify).Google Scholar

74 See generally Polster, supra note 52, at 16–22; see Lowery v. Cardwell, 575 F.2d 727, 732 (9th Cir. 1978) (Hufstedler, J., concurring) (right to effective assistance of counsel violated by abandonment of client when she perjured herself).Google Scholar

75 See generally Brazil, supra note 55, at 624–39.Google Scholar

76 Compare, e.g., Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978) (due process violation when, in bench trial, actions of defense counsel surprised by perjury of defendant-client conveyed clearly to judge belief in guilt of defendant) with McKissick v. United States, 379 F.2d 754, 762 (5th Cir. 1967) (duty of defense counsel to inform court of client's perjury). see also Lewis, People v., 393 N.E.2d 1380 (III. App. 1979) (no ineffective assistance of counsel when attorney reveals to court that client-accused is perpetrating fraud by simulating condition of incompetence in apparent attempt to avoid criminal trial); People v. Schultheis, Colo. App. July 10, 1980, reported in Nat'l L.J., July 28, 1980, at 3, col. 2 (defense counsel whose client insists on perjured testimony is allowed to withdraw, and trial judge is required to grant motion; but ineffective assistance of counsel violation occurs when attorney informs judge of reason for motion).Google Scholar

77 For a collection of authorities see Wolfram, supra note 31, at 847 (asking question); id., at 862 (argument to jury).Google Scholar

78 See Curtis, Charles P., The Ethics of Advocacy, 4 Stan. L. Rev. 3. 10–13 (1951). Even Freedman in his earlier controversial work on client perjury had hinted broadly that his permissive views “might well” not extend to civil cases. See Freedman, Lawyers' Ethics in an Adversary System, supra note 11, at 54.Google Scholar

79 See note 59 supra. Google Scholar

80 DR 7–102(B)(l). For a discussion of the history of the Disciplinary Rule and a collection of authorities see Annotated Code of Professional Responsibility 321–26 (Chicago: American Bar Foundation, 1979).Google Scholar

81 See note 57 supra. Google Scholar

82 See American Bar Association, Committee on Ethics and Professional Responsibility, Code of Professional Responsibility by State, Canon 7, at 17 (1977).Google Scholar

83 The extension would occur through the apparent rule of the Freedman-ATLA proposal that counsel would be required to conduct a “normal” examination of the perjuring client and give a “normal” summation in order not to make an “indirect” divulgence of a client confidence. See text at notes 49–51 supra. Google Scholar

84 See Wolfram, , supra note 31, at 865. see also Hoover, State v., 574 P.2d 1377, 1381 (Kan. 1978) (discipline for nondisclosure of false client testimony).Google Scholar

85 This consideration, which seems to have considerable strength as revealed in conversation with attorneys, is mitigated by at least two considerations. First, the client should not be led to believe that confidentiality would permit the client to commit perjury. See Kutak-ABA proposal, Rule 1.4(b); id., Comment, at 14 (“A new client should be given a general explanation of the client-lawyer relationship. A client should understand the lawyer's ethical obligations, such as the prohibitions against assisting a client in committing a fraud or presenting perjured evidence”). Second, by the lights of other lawyers, the more appropriate moral response would be to feel concern and outrage at being forced to remain silent in the face of a plain attempt, even by a client, to subvert a trial. See, e.g., John B. Mitchell, The Ethics of the Criminal Defense Attorney–-New Answers to Old Questions, 32 Stan. L. Rev. 293, 321–36 (1980); Ordover, supra note 65, at 320.Google Scholar

86 Cf. Jane Berentson. Integrity Test: Five of Thirteen Lawyers Fail, Am. Law., May 1980, at 15, col. 1 (5 of 13 lawyers consulted by lawyer-reporter posing as personal injury claimant expressed willingness to aid and abet perjury necessary to establish claim).Google Scholar

87 There is no reason to think that judgments about such matters will reflect any national consensus or nationwide uniformity of conditions. It might occur that individual jurisdictions will see fit to resolve the disclosure and nonparticipation problems in ways that better reflect local conditions and local sentiments. The professional rule-drafting groups could still perform a very useful role by offering to the local lawyer disciplinary agencies-primarily the highest court of each state–-different model provisions with different blends of obligations.Google Scholar

88 For a widesweeping critique along these general lines, see William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wisc. L. Rev. 29. See also Mitchell, supra note 85.Google Scholar