Ethics Opinon 1983-8

I
QUESTION PRESENTED

A non-party witness, not represented by counsel, is testifying in a trial. On cross-examination, Attorney A asks if the witness has discussed the case with opposing counsel, Attorney B, prior to testifying. The witness denies any such communication.

Attorney A knows, however, that such a communication has occurred, as he personally observed it or has personal knowledge about it.

1. Does Attorney A have a duty to disclose to the court that the witness had lied under oath?

2. Does Attorney B have a duty to disclose his knowledge to the court?

3. What procedure should an attorney follow if confronted with this type of situation?

II
SUMMARY

An attorney who knows that a non-party witness has committed perjury should attempt to rehabilitate, correct or impeach the witness. If the witness persists in his perjury, then any attorney with knowledge of it must disclose the perjury to the court at the earliest opportunity.

III
DISCUSSION

A variety of California rules and statutes, as well as A.B.A. Canons and Disciplinary Rules, provide guidance on this issue.

California Rule of Professional Conduct 7-105 provides:

In representing a matter to a tribunal, a member of the State Bar shall:

"(1) Employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law . . . ."

Further, California Business and Professions Code section 6128 provides:

"Every attorney is guilty of a misdemeanor, who either:

"(a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . ."

Various A.B.A. Disciplinary Rules might also apply to the facts presented in this question. Although the A.B.A. has approved a new Code of Ethics (which is still not published in final form) we know of nothing in the new rules which alters the following well-settled principles:

DR 7-102(b)(2) provides: "A lawyer who receives information clearly establishing that a person other than his client has perpetrated a fraud upon a tribunal must promptly reveal the fraud to the tribunal."

DR 8-102(A)(3) provides: "In his representation of a client, a lawyer shall not conceal or knowingly fail to disclose that which he is required by law to reveal."

DR 7-102(A)(4) provides: "In his representation of a client, a lawyer shall not knowingly use perjured testimony or false evidence."

DR 7-1-2(A)(6) provides: "In his representation of a client, a lawyer shall not participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false."

Based on these authorities, neither Attorney A nor Attorney B should permit the witness to commit perjury without advising the court or tribunal. Each attorney must, at the appropriate time, attempt to rehabilitate, correct or impeach the witness. If the witness persists in the perjury, the court should be advised.

This opinion is advisory only, and is not binding upon the State Bar, the Board of Governors of the State Bar, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.