Inspired by this thread, and almost appended to it. I changed my mind and spun it off instead.
In 2001 I was involved as a witness in a $50 million corporate bank fraud case. One of the plaintiff’s (the bank’s) lawyers made an agreement with one of the other witnesses in the case to mutually lie to the court about where some supporting documentation was obtained. Basically what happened was this: for several years this witness had been accumulating incriminating documentation against the defendant, who was also his employer, and stashing it at his home. But he didn’t want the defense to know that, because he thought it would make him look like he had a Captain Ahab complex and that the defense would try to twist that around and make him look like a screwball. So he and the plaintiff’s attorney mutually agreed to lie and say that the documentation had been serendipitously discovered ‘in the attic,’ so to speak, after the company had gone into receivership and the bank had sent in its clean-up squad. Did this attorney do something really reprehensible (it was her idea), or would the bar have simply ignored it if it had been brought to their attention?
ETA: I should add that they never agreed nor intended to modify the information in any way, just lie about where they found it.
Suborning perjury will get you disbarred and lead to the imposition of civil and criminal penalties besides. To answer your question: yes, these are extremely serious charges that you’re preferring against this attorney.
If he explicitly told them to lie, it’s suborning perjury, but sometimes lawyers can be very careful about suggesting testimony or scenarios without actually telling the witness to lie. They can artfully phrase things in the form of questions during preparation. “Is it possible you found that stuff in the attic? Is it possible that you both remember that?”
So I think it would depend on exactly what it can be shown that the lawyer knew, what he asked them and how he phrased things.
It really happened exactly the way I described it: the guy who was hoarding the evidence in his apartment called the lawyer and expressed concern about potentially being painted as a fruitcake. The lawyer said to him “don’t worry; we’ll say that we found it when we sent in our forensic guys to clean out the building.” It was an unambiguous agreement on both of their parts.
This isn’t apparently what happened in the OP’s case, but would this kind of thing actually work? If someone had proof of the lawyer making the suggestion in this sneaky “questioning” way, would it really get them off the hook?
I don’t think it would get the witness off the hook, but it could make it difficult to prove that the attorney intentionally suborned perjury. After all, he was only asking questions. How was he to know the witness was’t telling him the truth?
My ethics textbook had an example of something similar. It was on cross-examination in a tax fraud case and it went something like (because I am paraphrasing from memory) this:
Of course, the company maintained a numbered account at a bank in the Cayman Islands. This, however, was not suborning perjury; this was a nimble witness truthfully answering an ill-formed question from opposing counsel.
The example in this thread (“Is it possible that these documents might have been found in the attic?”) is defective (1) substantially, because it is an outright attempt to perpetrate a fraud upon the court, rather than merely holding opposing counsel to his/her burden of production (as in the Cayman Island account example), and (2) procedurally, because only in very limited circumstances, not apparently present here, may counsel ask his/her witness leading questions on direct.
I’m talking about when an attorney is speaking to someone in private before they testify. If the attorney says “don’t say you had the documents at home; say you found the documents in the attic at work,” he’s suborning perjury. My question is: if the attorney says something like, “If you tell them you had the documents at home, it won’t look good. Isn’t it possible you found them in the attic at work?”, he is obviously suborning perjury in spirit – if this were proven, could he (the attorney) get in trouble for this, or is the tricky way the question is phrased enough to clear him? On TV, he’d be cleared. What’s it like in real life? I like to think that such a transparent skirting of the rule wouldn’t be allowed.
From what I’ve seen of such cases in Ohio (none quite as crass as the OP), no, it wouldn’t be allowed. Suborning perjury by a wink and a nod is only marginally better than doing so outright, and both will probably lead to disbarment if not prosecution. A trial is, or ought to be, a search for the truth. Anything a lawyer does to obstruct or derail that process, outside of the ethical rules, is strongly discouraged.
Are you saying you know for a fact that attorneys don’t shape or suggest testimony when they interview witnesses pre-trial? Because I’ve seen it done. Please understand, I’m not saying they do this after they know what the facts are. It’s more like they avoid finding out what the facts are. They ask suggestive questions before you can tell them anything they don’t want to know.
This is closer to what I meant, but it’s a little more subtle than that. It isn’t like they say “don’t tell them X.” it’s more like, “So, these papers you’ve got, where did you find those? Did you find them when you were cleaning out the attic?” It’s leading enough to let you kind of get it, but no more than that.
My first thought was “no big deal” - what does it really matter where the stuff was found.
But then on a bit further relfection, it does make a lot of difference. Somebody had been stockpiling documents at home for some years? Doesn’t that give a LOT of opportunity to “doctor” said documents? And the fact that go to the effort to stock pile the docs could (not does) indicate some sort of ill will towards the company?
I really hope there was strong outside corrobation or support for this evidence.
I take it you mean that even though the lawyer was talking about the company, the fact that he said “you” meant the person on the stand could say “no” since he didn’t have a personal account at a Cayman Island bank?
In the case you describe, the attorney should have used their “artful” skills to help the witness explain why hording all this material was a great idea, instead of instructing them to flat out lie. That’s about the worst thing an attorney can do short of participating in the crime itself. If they are caught in it, it could ruin the entire case. It would be like a Perry Mason episode: “Are you lying now or were you only lying then! I move for summary judgment your honor!!!”