Legal Ethics Opinion No. 1362

Confidences and Secrets--Perjury--Representation Within the
Bounds of the Law: Propriety of Attorney Allowing Client to
Testify Untruthfully

You have advised that an attorney represented a husband and wife
in a loan default action brought by a bank which had repossessed
clients' vehicle.  The bank then filed suit to collect the loan
against both husband and wife as endorsers and brother and
sister-in-law who earlier had assumed the automobile loan.  At
the General District Court trial, the attorney presented the
defense that the wife believed she and her husband had been
released from liability when the loan was assumed by brother and
sister-in-law.  The husband testified under oath that he knew
nothing about the loan transaction or the fact that his wife had
signed his name on the loan documents until he received the civil
warrant in the case.  As a result, judgment was entered against
the wife and in favor of the husband and an indictment was
returned against the wife for forgery.  

At the subsequent criminal trial, attorney presented the defense
that the wife signed her husband's name to the loan documents
with his permission.  Both wife and husband testified under oath
that wife had signed husband's name to the loan documents with
his authorization.  At the conclusion of the criminal case, the
forgery charge against the wife was dismissed.  Finally, you
indicate that the same attorney, on behalf of the client/wife,
has brought charges of malicious prosecution against the bank on
the grounds of instigating the forgery proceedings against the
wife.  


You have asked the committee to consider the propriety of an
attorney presenting the defense and offering testimony that the
client/husband had no knowledge of a certain transaction until
the civil warrant was filed and then subsequently, in a criminal
action brought against his wife, presenting the defense and
offering client/husband's testimony which was contrary to the
earlier testimony in the civil case.  You indicate your belief
that the testimony offered in one of the trials was necessarily
false and the attorney had allowed his client to testify
untruthfully.  

In addition, you have asked the committee to opine on the
propriety of an attorney representing a client in a civil matter
and then in a subsequent collateral criminal case when that
attorney may be called as a witness to testify as to the
representations and defenses presented in the lower court.

The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 4-101(D)(1) and (2) dealing respectively with
an attorney's mandatory disclosure of his client's intent to
commit a crime or of information which clearly establishes that
his client has perpetrated a fraud upon a tribunal; DR 5-102(B)
which permits a lawyer to continue to represent a client, after
having been called as a witness other than on behalf of his
client, until it is apparent that his testimony is or may be
prejudicial to his client; and DR 7-102(A) which requires that a
lawyer represent his client within the bounds of the law and
prohibits a lawyer from, among other things, (1) knowingly using
perjured testimony or false evidence; (2) participating in the
creation or preservation of evidence when he knows or it is
obvious that the evidence is false; or (3) taking action on
behalf of his client when he knows or when it is obvious that
such action would serve merely to harass or maliciously injure
another.     
Under the specific facts as you have stated them in the inquiry,
the committee believes that the conflicting testimony offered by
the husband at the civil and criminal indictment proceedings
clearly indicates that he was not testifying truthfully on at
least one occasion.  If the attorney had prior knowledge that the
client intended to perjure himself at trial, it would have been
improper for the attorney to have permitted such testimony.  In
keeping with the procedures outlined under the Disciplinary
Rules, the attorney should have advised the client of the
consequences and indicated that such information would have to be
revealed to the court.  In addition, the attorney would be
required to withdraw as counsel unless the client agreed to
abandon his intent to commit perjury.    
The committee is of the opinion that it would be improper for an
attorney to put on a witness whose testimony is contradictory to
earlier statements made under oath without first determining
which of the two statements is truthful, and then, using the
procedure outlined above, rectifying any earlier false testimony
presented.  The committee believes that the only way the attorney
can prove the veracity of the witness' second statement would be
through the witness' renunciation of his first statement. 
Alternatively, the attorney may move the court for leave to
withdraw from the case.  If leave is granted, the attorney may so
withdraw and thus preserve the secret of the client's first false
statement since it would constitute the past crime of perjury and
would, therefore, not be an intended crime which must be
disclosed.  

Where an attorney knowingly failed to comply with the
Disciplinary Rules, presented or participated in presenting
perjured testimony or false evidence, or where an attorney
counseled his client in conduct that is illegal, fraudulent or
contrary to a Disciplinary Rule, such conduct would be per seimproper and violative of DR 7-102(A).  Similarly, it is improper
for an attorney to file a suit the basis for which relied upon
false testimony or evidence.  Such conduct may be construed as
serving merely to harass or maliciously injure another and would
be similarly improper. 

With regard to your inquiry related to the attorney being called
as a witness, if the attorney knows or should know that he may be
called as a witness in the malicious prosecution case against the
bank, presumably by opposing counsel who will want the attorney
to testify as to the representations and defenses presented in
the lower court, the attorney may continue the representation of
the client and appear as a witness until it is apparent that his
testimony is or may be prejudicial to the client.  However, given
the likelihood that, in the instant case, opposing counsel's
questioning will attempt to establish that the witness' testimony
was perjured and that a fraud may have been perpetrated upon the
tribunal, the committee is of the opinion that the attorney
should withdraw as counsel immediately after having been called
as a witness since his testimony would, by definition, be
prejudicial to his client. 

Finally, the committee directs your attention to DR 1-103(A)
which mandates reporting to the appropriate authority by an
attorney having knowledge that another attorney has committed a
violation of the Disciplinary Rules that raises a substantial
question as to that lawyer's fitness to practice law in other
respects.  Whether an attorney's conduct is such that it raises a
"substantial question as that lawyer's fitness to practice law in
other respects" requires a case-by-case determination which
should be made after consideration of the facts and analysis of
the impact on the offending lawyer fitness to practice law. 
[See:  LEO #1308 and In re Himmel, 125 Ill.2d 531, 533 N.E.2d 790
(1988)]

Committee Opinion
July 17, 1990