I know that a lawyer has a responsibility to not ask a question of his client on the stand if he knows that his client will perjure himself in answering it. But what should he do after his client has lied on the stand? If he goes along with the lie, is he not breaking his code of ethics? On the other hand, if he then avoids any line of argument that involves that testimony, is he not giving his opposition a huge clue that they need to dig hard at that particular line to find the lie in question? Or should he recuse himself from the trial?
That’s a pretty huge question, involving lots of different issues, so I may not answer them all.
First, in California, perjury is defined as wilfully misstating as true something that the speaker knows is false, under oath. The lawyer is not permitted to present false evidence to the court.
So if a client, on the witness stand, makes a false statement of material fact, and the lawyer knows it’s a false statement, the lawyer is in a quandry. What should he do after the client has lied on the stand? The lawyer should take a break and talk to the client, emphasizing the need to tell the truth. Hopefully, the client will buy a clue and, when he gets back on the stand, correct the mistake.
So if the lawyer stays on, he must tell his client, “I cannot support the false statement you made. I cannot use it; I cannot ask other witnesses about it as if it were true; I cannot refer to it in my closing argument.” Presumably, the false statement (being material)
But let’s assume, instead, the client tells the lawyer to go pound sand. The lawyer has a duty to maintain his client’s confidences. In other words, he can’t simply tell the judge that his client lied on the stand. (There are exceptions, but they’re not relevant to this discussion.) But he also has a duty not to mislead the court.
If continued representation of the client will lead to a violation of the Rules of Professional Conduct, the lawyer must withdraw from representing the client. This is tricky, of course, because it’s the middle of trial, and nobody likes it when the trial gets derailed.
The lawyer must tell the client that the lawyer cannot mislead the court by using the false statement made by the client; that the lawyer can’t use it in closing argument, for example, or act as if it were true in questioning other witnesses. Is opposing counsel going to clue in that there’s a problem? Maybe. Depends on how closely they’re paying attention.
I hope that helps.
One additional point – at some point, if your client refuses to let you withdraw, you may have an ethical obligation to petition the Court to let you withdraw. You can’t tell the Court why, but your silence on this when the judge asks you probably only means one thing, which the judge and the other side will pick up on, again, if they’re paying attention.
–Cliffy