It is axiomatic that a lawyer cannot countenance perjury by a client. ABA Model Rule of Professional Conduct 3.3, entitled “Candor Toward the Tribunal,” states that a lawyer may not offer knowingly false evidence. Moreover, if knowingly false material evidence is offered by a client in deposition or at trial, the lawyer “shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” While there are a few jurisdictions, notably the District of Columbia and California, that do not authorize disclosure (because it traverses the attorney-client privilege), the vast majority of states follow the Model Rule.
But what are “reasonable remedial measures?” What exactly should you do when a client testifies falsely during a deposition—and when? An opinion [PDF] by the New York County Lawyers’ Association, interpreting New York’s codification of Model Rule 3.3 [PDF] in the circumstance where the lawyer has learned after the fact that his client testified falsely during deposition, recites the remedial steps that a lawyer must take. First, the lawyer should ascertain whether it was an honest mistake or an intentional lie. If it is the former, then the lawyer should try to refresh the client’s recollection or otherwise demonstrate the inaccuracy of the testimony. The record can then be corrected through the deposition errata sheet or an affidavit. If the error is intentional, stronger measures may be required, including threatening to disclose the falsehood to the court if it is not corrected by the client. The opinion cautions: “[w]hile there is no set time within which to remedy false testimony, it should be remedied before it is relied upon to another’s detriment.”
Suppose a lawyer recognizes during a deposition, immediately after his or her client has answered a question, that the response is both material and false? Henry L. Hecht, in his comprehensive treatise Effective Depositions, summarizes the steps to be taken. First, if the question itself is ambiguous, and such ambiguity may have induced the false response, object to the question and insist that it be rephrased. Second, seek a break and confer with your client to ascertain why the incorrect answer was given. Third, if the client cannot provide a satisfactory explanation, warn the client about the consequences of his or her perjury, and advise the client of your duty to the tribunal. Fourth, if the client refuses to recant, suspend the deposition to prevent additional damage and buy time to try to persuade your client to do the right thing. If your client then sees the light, you can resume the deposition and have your client correct the record (while still under adverse examination, or during your subsequent questioning). Finally, if your client refuses to budge, you should create a record with the client, perform your ethical duty by correcting the deposition testimony, and withdraw from further representation.
Significantly, Hecht does not counsel what some lawyers, in fact, do—interrupt the client during his or her deposition and correct the error immediately. While that spontaneous remedial action may be instinctive, it is ill-advised for several reasons. First, it deprives adverse counsel of the right to conduct an examination that the rules provide may be interrupted only to state an objection concisely, for the purpose of instructing the witness not to answer based on privilege, to enforce an order of the court, or to allow counsel to move to terminate the deposition. Fed. R. Civ. P. 30(c)(2). Stated differently, under no circumstances is the lawyer allowed to testify on behalf of the witness. Second, it irretrievably places the witness in a bad light. Until the lawyer queries the client to ascertain the reason for the misstatement, it is presumptuous to assume that he or she is intentionally lying—and it deprives the client of the opportunity to explain why the mistake was inadvertent.
What about the rule in many jurisdictions that the deponent and his or her lawyer may not confer during the deposition about testimony that has already been given? Does not Hecht’s guide violate that dictum? The answer is “yes,” just as the lawyer’s duty to disclose perjury may breach the attorney-client privilege. The explanation is simple. In the vast majority of jurisdictions—where the model rules have been adopted—candor toward the tribunal is the bedrock principle. It trumps all, as the rules of procedure and the attorney-client privilege itself are but means to the ends of justice. And can there be justice without truth?
Charles S. Fax, Litigation News Associate Editor