BROWN V. COMMONWEALTH
ETHICS: RULE 3.3 AND CLIENT’S INTENT TO COMMIT PERJURY AT TRIAL; AND RULE 1.63 DUTY OF CONFIDENTIALITY
PUBLISHED: REVERSING AND REMANDING
MAJORITY OP BY NOBLE; CUNNINGHAM CONCURS BY SEP. OP WITH LAMBERT, MINTON JOIN; SCOTT DISSENTS BY SEP. OP. WITH MCANULTY JOINING; SCHRODER NOT SITTING
DATE RENDERED: 6/21/2007
SC ordered new trial for Defendant whose counsel withdrew from representation during trial. Here, defense counsel told the court that his client wanted to testify, and had the right to do so, but that counsel felt his ethical limitations created a conflict with the client. Under SC Rule 3.3, a lawyer is prohibited from offering evidence known to be false, may refuse to offer evidence that she reasonably believes to be false, and shall inform the tribunal of all material facts known to her so that the tribunal can make an informed decision whether the facts are adverse. The plain language of this rule contemplates that a lawyer will not advance false testimony of any witness, and that she will inform the court if such testimony is imminent and what facts support that belief. However, Rule 1.63 creates a duty of confidentiality that prohibits a lawyer from revealing information related to the representation of a client. Moreover, the client has a right to testify in his own defense and a right to counsel. This creates an apparent conflict when an attorney knows that a client intends to offer false testimony. (No such conflict exists when the witness is not a client).
TC erred in advising Brown and counsel that counsel could leave the courtroom during the narrative testimony. They either chose this option together or defense counsel chose his preference the record does not disclose which. By completely leaving the courtroom, in the presence of the jury, counsel telegraphed a problem to the jury. This was improper absent a knowing and voluntary waiver of counsel by Brown as to representation beyond the perjured testimony. Counsel should have remained to assist when he could, since only counsel knew what he believed to be a proper question or an improper one. It remains unknown whether counsel had a good faith, firm factual basis to believe the testimony would be perjury. Had counsel remained and assisted when he could, the need for specific findings would not have arisen until a motion for a new trial was filed. However, given that no one other than counsel and Brown knew the contested area of testimony, requiring Brown to testify wholly on his own and without benefit of counsel’s objections on cross examination (which would have been directed at evidentiary rules rather than content), Brown was unconstitutionally deprived of his right to assistance of counsel. This was compounded by requiring him to make his own closing argument and allowing counsel to return to conduct the sentencing phase.
Note: This opinion demonstrates the ethical dilemma for a defense attorney who has a client that intends to lie on the stand. It is rare when a client will outright admit this to you, but when it happens, the question becomes what to do. Although the opinion of the court lays out a pretty good roadmap, the dissent makes clear that while safeguards are in place for the protection of the accused, the accused doesn’t have to use them.