Lawyer, an officer of the court

Ethical considerations: 

Perjury, a trap for the unwary lawyer...

     As an officer of the court, an attorney has a duty to ensure false evidence is not presented. The lawyer, however, also has a duty to his client to keep all attorney-client communications confidential. Usually, maintaining both these duties is not a problem. However, when a client decides to commit perjury, the lawyer is faced with the dilemma of reconciling these two conflicting interests.

     The Model Rules of Professional Conduct, which have been adopted by the Nevada Supreme Court "as the rules of professional conduct for lawyers who practice in Nevada," provide that a lawyer "shall not reveal information relating to representation of a client unless the client consents after consultation." See SCR 150(1) and 156(1). However, "[a] lawyer may reveal such information to the extent that the lawyer reasonably believes necessary . . . to prevent or rectify the consequences of a client s criminal or fraudulent act in the commission of which the lawyer s services have been used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action." SCR 156(3)(a). The question often arises as to what an attorney ethically and legally must do if he knows his or her client intends to offer or has offered perjured testimony or falsified evidence to the court. In considering this issue, SCR 172 is instructive. SCR 172 provides:

Rule 172. Candor toward the tribunal:

1. A lawyer shall not knowingly:
   • make a false statement of material fact or law to a tribunal;
   • fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
   • fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
   • offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
2. The duties stated in subsection 1 continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 156.
3. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
4. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision,whether or not the facts are adverse." (emphasis added)

     The mandatory language of SCR 172(1) presupposes that a lawyer will actually "know" when the client s testimony is false. The irony of this rule is that the lawyer is an advocate, and issues such as the veracity of a client are best left to the trier of fact. Nevertheless, when a lawyer believes a client intends to commit perjury, "the lawyer should seek to persuade the client that the evidence should not be offered, or, if it has been offered, that its false character should be revealed." (Model Rules of Professional Conduct, Rule 3.3, Comment 

   5.  The permissive language of SCR 172(3) further strengthens the premise that the lawyer is in control of what evidence is to be offered to the court, and imposes a standard of "reasonable" belief, granting further discretion to the lawyer. 

     Most importantly, however, is the mandate set forth in SCR 172(2) which provides that the attorney s duties set forth in subsection 1 "apply even if compliance requires disclosure of information otherwise protected by Rule 156." Thus, it is apparent from our Supreme Court Rules that the Nevada Supreme Court has concluded that an attorney s ethical obligation to prevent perjured testimony from being presented to a court takes precedence over the attorney s obligation to "not reveal information relating to representation of a client unless the client consents after consultation." SCR 156(1).

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Perjury or Obstruction?

Whoever—

(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or

(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined under this title or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.

"LII has no control over and does not endorse any external Internet site that contains links to or references LII." Taken from website: www.law.cornell.edu/uscode/text/18/1621

• Perjury is a criminal act. Different jurisdictions have different rules about how to initiate a prosecution for perjury. A lawyer who commits perjury would also be subject to disciplinary measures from his professional governing body.

• Perjury is a criminal act that occurs when a person lies or makes statements that are not truthful while under oath. For example, if a person is asked to testify in a criminal proceeding and they are under oath but do not tell the truth, they can be charged with perjury if it is discovered that they have lied. By committing perjury, people partake in the miscarriage of justice and corrupt the legal process. As a result, perjury is considered a very serious criminal offense, even though most people who lie under oath do not consider it to be very serious. When people commit perjury, they disrupt the legitimate discovery of truth. For this reason, people who are charged with perjury may face a variety of severe legal ramifications if they are convicted. Some of these legal consequences may include having to spend time in jail, probation, or paying fines to the court. It can also interfere with their ability to obtain employment or security clearance, as they will be convicted of a crime of dishonesty.

Unfortunately, the harsh reality is that perjury is very rarely charged against anyone who testifies unless the offense is egregious. The reason? It is exceptionally difficult to show that someone intentionally lied about something unless their lie is so far afield that it is plain that person is attempting to mislead the trier of fact. 
*On the other hand, if John shot Steve and the event was caught on camera, but one of the witnesses testified that John was not even there and had spent the whole day with him, that is much more likely to result in a perjury charge (among others, like obstruction of justice). The reason is that the evidence shows irrefutably that the witness clearly knew he was lying when he made the statement.

Unfortunately, one of the most common places you might experience perjury is during family law proceedings. People routinely mischaracterize their income, events that might affect child support or alimony, the location and value of assets that should be distributed between the parties, etc. Of course, this is also one of the settings where perjury can often be the most difficult to prove and is rarely enforced because it is often difficult to prove. Nevertheless, if you can provide irrefutable evidence that someone has lied under oath, you may have the right to ask that the person be held in contempt for perjury and/or you or the judge might notify the local criminal prosecutor of the event.
http://www.hg.org/article.asp?id=30944

"...it is important to the administration of justice that full disclosure by a witness be not hampered by a possible future damage suit. Consequently, perjury is an offense against the public only, and subject only to the criminal law." Eikelberger v. Tolotti, 96 Nev. at 531.1

Except when authorized by statute, no civil action lies to recover damages caused by perjury or subornation of perjury. In Eikelberger v. Tolotti, 96 Nev. 525, 531, 611 P.2d 1086, 1090 (1980), the Nevada Supreme Court noted that "it is uniformly held that the giving of false testimony is not civilly actionable." Thus, a party injured by perjured testimony cannot bring a civil action against the opposing party or a witness who has offered perjured testimony, even if the perjury has affected the final judgment in the case. http://deltabravo.net/cms/plugins/content/content.php?content.324