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Abstract

In April of 1987, the American Bar Association's Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 87-353. Influenced by the problem of a criminal defendant's potential perjury, as discussed in Nix v. Whiteside, the Formal Opinion focuses on subsection 3.3(a)(2) of Model Rule 3.3, rather than on subsection 3.3(a)(4). As a result, the Opinion advises all lawyers — civil and criminal — who know that their clients will lie to the jury, to “disclose the client's intention to testify falsely to the tribunal,” unless they can withdraw from the representation or prohibit the prospective lie. It advises lawyers whose clients have already committed perjury to “persuade the client to rectify the perjury or disclose the client's perjury to the tribunal.” The Formal Opinion takes away the civil trial lawyer's flexibility in choosing an appropriate remedy after a witness has offered material false evidence and requires disclosure of a civil client's intention to lie, even under circumstances in which the lawyer does not intend to offer the client's testimony. By deciding that Model Rule 3.3 applies in criminal cases, the Formal Opinion purports to resolve the dilemma that has deviled criminal defense lawyers for more than twenty years. It prescribes a course of conduct, however, that may not solve the problem for the adversary system created by a lying criminal defendant.

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