When Spit Hits the Fan in Court Proceedings!

By Simon Azar-Farr2

Some clients lie, or may want to lie, for all kinds of reasons. Lying, of course, is not limited to clients. Some politicians lie; some law enforcement officers lie; some prosecutors lie; some lawyers lie; some doctors lie; and on and on. There are probably as many reasons for lying as there are different kinds of liars: the notorious liar, the consummate liar, the incorrigible liar, the inveterate liar, the congenital liar, the chronic liar, the pathological liar, the unconscionable liar, the glib liar, the egregious liar.

Of the myriad personalities of the last 600 years, I doubt anyone understood lying more than Shakespeare. Sigmund Freud came very close. But Shakespeare’s characters are the best of the classic liars. Think of Lady Macbeth, Falstaff, Iago, or Tamora and Aaron.

Lady Macbeth for example instructs us on how to attempt to deceive: “To beguile the time / look like the time.”3 She also tells us “look like th’ innocent flower / but be the serpent under’t.”4 Although Lady Macbeth lies left and right and ultimately enables the murder of King Duncan, she also deftly claims the mantle of victimhood. So it is sometimes nowadays.

Unlike tragic literary heroes with grand ambitions, one practicing law before a court or an administrative tribunal simply cannot engage in lying or deception or permit his client to do so because some end justifies it. There are rules against suborning perjury or deception that a lawyer must follow or risk reprimand, censure, or, in the most severe case, the loss of one’s law license. Discussing these rules in the narrow context of court proceedings is the topic of this article. Primarily by posing three distinct scenarios (we can call them the before, the during, and the after scenarios), my aim is to guide you as to what steps to take when your client wants to lie or has lied to a court or an administrative tribunal.

Issue: What are a lawyer’s ethical obligations in the following scenarios?

1. A client tells his attorney that he intends to lie on the stand. The attorney advises him not to, but client insists on doing so. May the attorney call him to the stand to testify? What if he insists that he wants to testify?

2. An attorney discovers after a case has concluded that the client lied under oath before the court. What is the attorney’s obligation to the court and to the opposing counsel? What are the attorney’s continuing obligations to the client?

3. A client, while testifying in court, lies under oath and the attorney immediately recognizes it. What should the attorney do? What are the attorney’s obligations to the court, to opposing counsel, and to the client?

The brief and broad answer to the above scenarios is that while a lawyer generally must preserve confidential client information, he has a corresponding and a superseding obligation to the court to provide truthful information. Accordingly, a lawyer may not make use of or elicit false testimony. He should attempt to persuade his client not to perjure himself. If client insists on perjuring himself, the lawyer cannot call him to testify regarding that matter. If the perjury has already happened, the lawyer should urge his client to withdraw the false information and, if that is unsuccessful, the lawyer is obliged to disclose the truth to the court himself.

Competing ethics principles

A lawyer has several competing ethical obligations in the scenarios I have listed. First, a lawyer has sacred duties of confidentiality and loyalty to the client. The Texas Disciplinary Rules of Professional Conduct provide that:

(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e) and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client to:

(i) a person that the client has instructed is not to receive the information; or

(ii) anyone else, other than the client, the client’s representatives, or the members, associates, or employees of the lawyer’s law firm.

(2) Use confidential information of a client to the disadvantage of the client unless the client consents after consultation.

(3) Use confidential information of a former client to the disadvantage of the former client after the representation is concluded unless the former client consents after consultation or the confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless the client consents after consultation.5

Further, a lawyer owes a duty of loyalty toward a client,6 and must abide by the client’s decisions “concerning the objectives and general methods of representation,” and in a criminal matter, as to “whether the client will testify.”7

But these duties of confidentiality and loyalty and consultation do not allow the lawyer to act as a party to falsification of evidence or other fraud.8 Candor toward the tribunal and protection of a trial as a truth-seeking mechanism in our system of justice outweigh even the profound interests of loyalty to one’s client and protection of privileged disclosures.9

The U.S. Supreme Court has endorsed this balancing of the interests at play in a 1986 criminal case. The defendant, accused of shooting his drug dealer, consistently told his attorney that he believed the victim had held a gun but that he had not actually seen the gun. Shortly before trial, however, he changed his story, telling the attorney, “If I don’t say I saw a gun, I’m dead.”10 His defense team told him at the time:

[We] could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; . . . I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony.11

The defendant, following his attorney’s advice, did not testify that he had seen a gun in the victim’s hand. After the defendant was convicted, he petitioned for a writ of habeas corpus, arguing “that he had been denied effective assistance of counsel and of his right to present a defense by [the attorney’s] refusal to allow him to testify as he had proposed.”12

The Supreme Court disagreed.

In Strickland, we recognized counsel’s duty of loyalty and his ‘overarching duty to advocate the defendant’s cause.’ Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908.13

The Supreme Court noted that the Model Rules (on which the Texas Rules are based) “do not merely authorize disclosure by counsel of client perjury; they require such disclosure.”14 It went on to say that “the legal profession has accepted that an attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct” and “that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.”15

Therefore, for the lawyer in that case to set the record straight carried no constitutional infirmities. “For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to testify truthfully.”16

In keeping with these principles, the Texas Rules of Disciplinary Conduct dictate:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act;

… or

(5) offer or use evidence that the lawyer knows to be false.

(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures, including disclosure of the true facts.

(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer reasonably possible.17

Other parts of the rules echo these requirements.18 Let’s consider the three scenarios I listed earlier.

Scenario 1: Client tells his lawyer he intends to lie on the stand

If a lawyer knows that a client intends to perjure himself, he must first try to talk him out of it.19 He should also warn the client of the further corrective action the lawyer will take if the client does in fact commit perjury.20 If the client insists on testifying falsely, the lawyer can and in fact is obligated to refuse to offer the perjured testimony, though she may still put the client on the stand to testify as to other matters the lawyer does not believe will be perjured.21 The lawyer may also ask to withdraw from the case—though generally he may not tell the tribunal why he wants to withdraw.22

Scenario 2: The lawyer discovers later that the client lied during direct examination

If the lawyer discovers after the fact that his client perjured himself during the testimony the lawyer elicited, similar duties apply.23 The lawyer must first try to convince the client to correct the record himself, even though this may open the client to adverse consequences.24 Second, if the client fails to correct the record, the lawyer must disclose the truth to the court.25 “[A]n attorney’s revelation of his client’s perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony.”26

Conversely, a lawyer who assists the client in concealing the truth through false testimony can face disbarment.27 As made clear in paragraph (c) above, the lawyer’s duty to set the record straight “continues as long as there is a reasonable possibility of taking corrective legal actions before a tribunal.”28

Scenario 3: A lawyer immediately recognizes that his client lied during direct examination

The controlling rules of ethics do not explicitly address the question of what to do in the moment the false testimony unexpectedly appears during direct examination. Because of the Texas rules requiring that a lawyer first consult with a client and give the client the opportunity to retract the false statement, I believe it would be best to ask the court for a short recess so the lawyer could speak to the client and urge him to testify truthfully. However, it is incumbent upon the lawyer to not let the false testimony stand regardless of whether that conference occurs.

Caveats

There are a few important caveats to these principles. First, the lawyer must know the information is false. If he simply disbelieves the information but does not have proof that the information is false, the disclosure obligations I cited earlier do not apply.

Likewise, while a lawyer does not have to introduce evidence he thinks is “untrustworthy,” this “discretion should be exercised cautiously … in order not to impair the legitimate interests of the client. Where a client wishes to have such suspect evidence introduced, generally the lawyer should do so and allow the finder of fact to assess its probative value.”

Another caveat to bear in mind is that it must be reasonably clear that the client will actually go forward with the false testimony. If the client just threatens to lie at some time in the future, it is necessary to wait until the threat becomes more concrete before making actual disclosures.

Finally, at least under the Texas rules, the lawyer is only obligated not to elicit false testimony or make use of it during direct examination. The lawyer is not obligated to correct the record if someone else elicits the false testimony. For instance, if the client lies under cross examination conducted by opposing counsel, the lawyer does not need to advise the court of this fact. However, the lawyer cannot make use of the false testimony in redirect or in briefs or other statements to the court, he should still advise the client to correct the record, and the lawyer is permitted to move to withdraw.

In this same vein, if the opposing counsel (or an officer of the court or another third party) has given false information to the court about a material issue, the lawyer is not compelled to correct the record so long as neither the lawyer nor his client contributed to the misinformation. But again, the lawyer may not make use of the false information and, if he or his client is asked directly to confirm it, he must either set the record straight or ask to be excused from answering.

This came up in a criminal case in which the court asked the prosecution about the defendant’s prior criminal record, and the prosecutor erroneously said the defendant had none. When the court followed up with defense counsel and the defendant, they neither confirmed nor denied the prosecution’s statement. The ethics panel determined that this was the correct response, and that the defense attorney might in fact have violated his professional obligations by divulging the true facts—though he would also have committed an ethical violation by confirming the prosecutor’s statement.35

To be a lawyer is to be a part of a noble profession. The practice of law requires a lawyer to balance his responsibilities to his clients, the legal system in which he operates and his own personal values and duties. No rules or comments “exhaust the moral and ethical considerations that should guide a lawyer, for no worthwhile human activity can be completely defined by legal rules.”36 However, when it comes to your own client’s candor before a court, I believe you may be able to sleep in peace at night if you are able to advise your client “to thine own self be true/and it must follow, as the night the day/ thou canst not then be false to any man.”37

Simon Azar-Farr has been practicing law for more than thirty years. He worked at the U.S. Department of Justice for two years before entering private practice. He is a graduate of the University of Utah S.J. Quinney School of Law where he served as editorin-chief of the Law Journal. His practice has focused on complex immigration matters and defense work in federal criminal cases. He has litigated more than 150 federal lawsuits against the DHS or other federal agencies and more than 20 of these cases have led to precedent decisions. His articles have been published widely in national journals covering various aspects of immigration and federal criminal law. The articles can be found on his firm’s website, www.simonazarfarr.com. He is an avid hiker, photographer, and backcountry skier.

Simon Azar-Farr has been practicing law for more than thirty years. He worked at the U.S. Department of Justice for two years before entering private practice. He is a graduate of the University of Utah S.J. Quinney School of Law where he served as editorin-chief of the Law Journal. His practice has focused on complex immigration matters and defense work in federal criminal cases. He has litigated more than 150 federal lawsuits against the DHS or other federal agencies and more than 20 of these cases have led to precedent decisions. His articles have been published widely in national journals covering various aspects of immigration and federal criminal law. The articles can be found on his firm’s website, www.simonazarfarr.com. He is an avid hiker, photographer, and backcountry skier.

ENDNOTES

1 This paper was delivered as part of a lecture at a University of Texas School of Law CLE program in October 2024.

2 All copyrights reserved.

3 William Shakespeare, Macbeth, act I, sc. 5, l.64-65 (The Yale Shakespeare, 1918, rev. ed. 1954).

4 Id., l.66-68.

5 Tex. Disciplinary R. Prof. Conduct, Rule 1.05(b) (Texas Center for Legal Ethics, 2024) from legalethicstexas.com/resources/rules/texas-disciplinary-rules-of-professional-conduct/candor-toward-the-tribunal/.

6 Comment 1 to Tex. Disciplinary R. Prof. Conduct 1.06.

7 Tex. Disciplinary R. Prof. Conduct 1.02(a)(1), (3).

8 Tex. Disciplinary R. Prof. Conduct 1.02(c).

9 Comment 10 to Tex. Disciplinary R. Prof. Conduct 1.05 (noting that “Rule 503(d)(1), Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 503(d)(1), Texas Rules of Criminal Evidence (Tex. R. Crim. Evid.), indicate the underlying public policy of furnishing no protection to client information where the client seeks or uses the services of the lawyer to aid in the commission of a crime or fraud.”); Comment 11 to Tex. Disciplinary R. Prof. Conduct 1.05 (“A lawyer’s duty under Rule 3.03(a) not to use false or fabricated evidence is a special instance of the duty prescribed in Rule 1.02(c) to avoid assisting a client in criminal or fraudulent conduct, and sub-paragraph (c)(4) permits revealing information necessary to comply with Rule 3.03(a) or (b). The same is true of compliance with Rule 4.01.”).

10 Nix v. Whiteside, 475 U.S. 157, 160-61 (1986).

11 Id. at 161.

12 Id. at 162.

13 Id. at 166 (internal citation omitted). 

14 Id. at 168

15 Id. at 169. 

16 Id. at 173-74; see also United States v. Garza, 429 F.3d 165, 172 n.4 (5th Cir. 2005)(finding that a client had no right to testify untruthfully); United States v. Thompson, 130 F.3d 676, 686-87 (5th Cir. 1997) (stating that a “defense lawyer already had an ethical obligation to the court not to elicit” false testimony).

17 Tex. Disciplinary R. Prof. Conduct 3.03.

18 Tex. Disciplinary R. Prof. Conduct 1.05(c)(4), (7), (8) (allowing a lawyer to disclose confidential information, among other situations, “When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law,” or “When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act” or “To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used.”); Tex. Disciplinary R. Prof. Conduct 1.05(f) (requiring an attorney to “reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b).”); Rule 4.01 (“In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”).

19 Comment 5 to Tex. Disciplinary R. Prof. Conduct 3.03. 

20 Comment 6 to Tex. Disciplinary R. Prof. Conduct 3.03.

21 Comments 5-6 to Tex. Disciplinary R. Prof. Conduct 3.03.

22 Comment 6 to Tex. Disciplinary R. Prof. Conduct 3.03.

23 Comment 12 to Tex. Disciplinary R. Prof. Conduct 1.05 (if the lawyer was “innocently involved in past conduct by the client that was criminal or fraudulent . . . the lawyer has a legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that the lawyer’s participation was culpable. Sub-paragraph (c)(6) and (8) give the lawyer professional discretion to reveal both unprivileged and privileged information in order to serve those interests.”).

24 Tex. Disciplinary R. Prof. Conduct 1.02(e) (“When a lawyer has confidential information clearly establishing that the lawyer’s client has committed a criminal or fraudulent act in the commission of which the lawyer’s services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action.”); Comment 4 to Tex. Disciplinary R. Prof. Conduct 4.01 (“When a lawyer discovers that a client has committed a criminal or fraudulent act in the course of which the lawyer’s services have been used, or that the client is committing or intends to commit any criminal or fraudulent act, other of these Rules require the lawyer to urge the client to take appropriate action. See Tex. Disciplinary R. Prof. Conduct 1.02(d), (e), (f); Tex. Disciplinary R. Prof. Conduct 3.03(b). Since the disclosures called for by paragraph (b) of this Rule will be “necessary” only if the lawyer’s attempts to counsel his client not to commit the crime or fraud are unsuccessful, a lawyer is not authorized to make them without having first undertaken those other remedial actions. See also Tex. Disciplinary R. Prof. Conduct 1.05.”).

25 Tex. Disciplinary R. Prof. Conduct 3.03(a)(2), (b); see also Tex. Disciplinary R. Prof. Conduct 4.01(b) (“In the course of representing a client a lawyer shall not knowingly . . . fail to disclose a material fact to a third person when disclosure is necessary to avoid making the lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by a client.”); Tex. Disciplinary R. Prof. Conduct 1.05(c)(4) and (8), 1.05(f)(stating a lawyer may disclose a client’s confidential information “When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rules of Professional Conduct, or other law,” and “To the extent revelation reasonably appears necessary to rectify the consequences of a client’s criminal or fraudulent act in the commission of which the lawyer’s services had been used,” but saying the lawyer “shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b), or by Rule 4.01(b)”) (emphasis added).

26 Nix v. Whiteside, 475 U.S. at 170.

27 In re Ray, 951 F.3d 650, 653 (5th Cir. 2020) (upholding a district court’s disbarment of an attorney who assisted his client in “engag[ing] in fraud, misrepresentation, and misconduct in his presentations, verbally and in writing, to the court in pretrial matters, during the trial, and in his presentations to the Fifth Circuit in support of his appeal from the district court’s dismissal of his claims.”)(citation modified).

28 Comment 14 to Tex. Disciplinary R. Prof. Conduct 3.03.

29 Comment 15 to Tex. Disciplinary R. Prof. Conduct 3.03; see also Comment 2 to Tex. Disciplinary R. Prof. Conduct 4.01 (“A lawyer violates paragraph (a) of this Rule either by making a false statement of law or material fact or by incorporating or affirming such a statement made by another person. Such statements will violate this Rule, however, only if the lawyer knows they are false and intends thereby to mislead.”).

30 Id.; see also McCoy v. Louisiana, 584 U.S. 414, 425 (2018) (finding that an attorney could not admit guilt over his client’s objection when the attorney “harbored no doubt that [the client] believed what he was saying,” but the attorney “simply disbelieved [the client’s] account in view of the prosecution’s evidence,” and when the attorney’s “express motivation for conceding guilt was not to avoid suborning perjury, but to try to build credibility with the jury, and thus obtain a sentence lesser than death.”).

31 Tex. Comm. on Professional Ethics, Op. 482 (1994) (finding, when a client “suggested [in a taped interview] that his recollection of facts might change in the absence of some type of ‘financial reward,’” that “[i]f the client perjures himself in open court, the firm may reveal the contents of the transcript to the court in order to avoid assisting the client’s commission of a criminal or fraudulent act. Until the ex-employee definitely manifests an intention to commit perjury, however, the firm cannot disclose the confidential information.”).

32 Comment 13 to Tex. Disciplinary R. Prof. Conduct 3.03; see also Tex. Comm. on Professional Ethics, Op. 692 (2021) (“Under the Texas Disciplinary Rules of Professional Conduct, a lawyer does not have a duty to correct intentionally false statements made by the client while being cross-examined by the opposing party’s counsel during a deposition. Nevertheless, the lawyer should urge the client to correct the false statements, including by explaining the potential civil and criminal ramifications of false testimony. If the client refuses, the lawyer may (but is not required to) withdraw from the client representation if permitted by the Rules. If the lawyer does not withdraw, the lawyer is not required to disclose the true facts but may not use the false deposition testimony in any way to advance the client’s case.”). 

33 Tex. Comm. on Professional Ethics, Op. 504 (1994).

34 Id.; see also Comment 13 to Tex. Disciplinary R. Prof. Conduct 3.03.

35 Tex. Comm. on Professional Ethics, Op. 504 (1994).

36 Tex. Disciplinary R. Prof. Conduct Preamble ¶ 11.

37 William Shakespeare, Hamlet, Act 1, sc. 3, l. 78-80 (The Yale Shakespeare, 1917, rev. ed. 1966).