I had just entered private practice after perhaps too-long as a prosecutor. You know, with a typically high and mighty view that everyone is guilty.

Well, my brand new client, previously represented by another attorney who apparently lost his client's faith, had pleaded guilty under the Rockefeller Drug Laws to a three-to-life sentence for distributing cocaine. She bought cocaine in Manhattan for a winter weekend party at the beach and resold the drugs—at cost, or none—to her friends. She would likely serve two years, but wanted to withdraw her plea and go to trial.

Seated across from her in the jail's counsel room, she told me her extremely incriminating and frankly indefensible story. I explained that there seemed no basis to persuade the judge—a hangman, to boot—to give her back her plea, and he probably would be doing her a favor because if she lost at trial, as was likely, she would face a mandatory 15-year sentence. She was, however, adamant. And, showing imagination, if you could properly call it that, she now said she "was entrapped, and I'll so say in my affidavit." As told, her new story might have made for a compelling entrapment defense. The problem? It was totally different than what she said just moments before. "So you intend to commit perjury!" "Yes. The police lied, and I will too!"

I was appalled. After all, I had just emerged from the office of truth, justice and the American way! No client was going to commit perjury on my watch. I pretty much threatened to resign, and stormed out of the jailhouse. The transition to private practice is often hard! Looking back on it 30-plus years later, I laugh at my naiveté.

When I returned to the office my senior asked what happened. He smiled, somewhat derisively. So, I said, "what would you have done, big shot?" He was right: "I'd simply tell her that it doesn't work when the police lie, and it won't work when you lie." He'd move on to come up with a better strategy. I went back to the jail some time later, and ultimately prevailed upon her to stick with the deal she had made, which I believed then and now was in her best interest. Indeed, I added my colleague's technique to the mix, which seemed to work well.

I was thus able to avoid an ethical dilemma, but others sometimes cannot.

'Nix v. Whiteside'

Take Iowa attorney Gary Robinson. You remember him. In 1977, Emanuel Whiteside was arrested for stabbing Calvin Love to death in his bed. After being charged, Whiteside told Robinson, his court appointed attorney, that he stabbed Love in self-defense because he thought Love was pulling a gun from under a pillow. However, Whiteside didn't see the gun and none was found by the police. One week before trial, Whiteside's memory astonishingly became "refreshed"—he had actually seen something metallic in Love's hand. As he told his lawyer, citing another court case which he had somehow picked up in the jailhouse library, "If I don't say I saw a gun, I'm dead." Robinson told Whiteside that a self-defense claim could be made even without a gun.

But Robinson went further. He told Whiteside that the new statements were perjurious, and that if Whiteside so testified, Robinson would tell the court, and maybe even impeach that testimony before the jury, which would devastate Whiteside's defense. Whiteside testified and, given Robinson's threat, never mentioned seeing something metallic in Love's hand. He was convicted and, after exhausting state appeals, sought federal habeas corpus relief. The theory? That he was denied effective assistance of counsel because Robinson would not let him testify as he proposed, i.e., his lawyer would not let him give perjured testimony.

Whiteside's ultimate appeal to the Supreme Court failed unanimously: "At most he was denied the right to have the assistance of counsel in the presentation of false testimony." Chief Justice Warren Burger's opinion relied on ethics rules, which reliance was widely criticized, including by his fellow justices: "This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in state courts." Nix v. Whiteside, 475 U.S. 157 (1986) (Brennan, J., concurring).

But consider Justice Stevens's famous concurring opinion:

Justice Holmes taught us that a word is but the skin of a living thought. A 'fact' may also have a life of its own. From the perspective of an appellate judge, after a case has been tried and the evidence has been sifted by another judge, a particular fact may be as clear and certain as a piece of crystal or a small diamond. A trial lawyer, however, must often deal with mixtures of sand and clay. Even a pebble that seems clear enough at first glance may take on a different hue in a handful of gravel.

As we view this case, it appears perfectly clear that [Whiteside] intended to commit perjury, that his lawyer knew it, and that the lawyer had a duty—both to the court and to his client; for perjured testimony can ruin an otherwise meritorious case …

Nevertheless, beneath the surface of this case, there are areas of uncertainty that cannot be resolved today. A lawyer's certainty that a change in his client's recollection is a harbinger of intended perjury … should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believes he recalls) details that he previously overlooked …

And so, we ask the question: When does a lawyer truly "know" that her client intends to commit perjury?

The Rules

First, we turn to the NY Rules of Professional Conduct and the ABA Model Rules of Professional Conduct. NY Rule 3.3(b) provides that "[a] lawyer who represents a client before a tribunal and who knows that a person intends to engage or is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take remedial measures including, if necessary, disclosure to the tribunal." See ABA Rule 3.3(b). And "know" is defined as: "actual knowledge of the facts in question. A lawyer's knowledge may be inferred from circumstances." NY 1.0 (k); ABA 1.0(f). See United States v. Parse, 789 F. 3d 154 (2d Cir. 2015). Doe v. Federal Grievance Committee, 847 F. 2d 57 (2d Cir. 1988).

The Rules go one step further—if material evidence is presented "and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal." Unlike in a civil case, however, in a criminal case a lawyer may not refuse to offer the defendant's testimony who insists on it, even if, surprising as it might seem, the lawyer reasonably believes it is false. NY 3.3(a)(3) and (c); cf. ABA 3.3(a)(3) and (c); See also NY and ABA Rule 3.4. See People v. DePallo, 96 N.Y.2d 437 (2001): "A lawyer with a perjurious client must contend with competing considerations—duties of zealous advocacy, confidentiality and loyalty to the client on the one hand, and a responsibility to the courts and our truth-seeking system of justice on the other." In DePallo, by the way, the lawyer offered the defendant's testimony, which counsel believed would be false, in narrative form.

There is, at bottom, an important balance—a tightrope that lawyers sometimes fail to walk. In People v. Darrett, 2 A.D. 3d 16 (1st Dept. 2003), the defendant testified at a Huntley hearing. His lawyer, however, expressed to the court, in great detail, her belief that her client "might" perjure himself, actually sharing with the court privileged information in the process. The defendant was ultimately convicted of first degree murder and sentenced to life. The First Department's opinion—well worth reading—describes what a lawyer faced with this situation should do short of making the type of disclosure to a judge that she did. See also United States v. Williams, 698 F.3d 374 (7th Cir. 2012) (concurring op. Hamilton, J.).

Disciplinary Matters

Of course, the Disciplinary Committee takes complaints where attorneys make false statements or fail to correct false statements very seriously—although, interestingly, the cases found deal with civil litigation, not criminal prosecutions. In Matter of Friedman, 196 A.D.2d 280 (1st Dept. 1994), counsel was faced with 17 counts alleging, among other things, that he made false statements, failed to advise the court of false statements once he knew they were false and that he solicited a witness to make false statements at civil trials. The First Department found the conduct "inexcusable" and that disbarment was the "only proper punishment." See also Matter of Jannof, 242 A.D.2d 27 (1st Dept. 1998) (four-year suspension).

Conclusion

Yes, there are instances where criminal lawyers presumably believe, or even feel that they "know," that a client intends perjury and so informs the court without client consent, as in DePallo. It may also happen that a lawyer is motivated by "fear" that she will later be accused, maybe by a disgruntled client, of knowingly having participated in perjured statements. At bottom, as well put by experienced discipline practitioner and ethics lecturer, Michael Ross, the decision whether to inform the court of a concern that there is an intent by the client to commit perjury largely depends upon "the lawyer's appetite for risk." That speaks for itself, doesn't it?

Interestingly, my unscientific poll of discipline prosecutors discloses that they very rarely proceed with, or even receive, a complaint that a criminal lawyer "knew" that her client was intent on perjury (or fraud on the court) and allowed it to occur without taking any meaningful measures to stop it. Maybe it's simply the case, since Nix, that the active bar generally accepts the notion that defense lawyers typically view a change in a client's story somewhat benignly, as best articulated in Justice Stevens's concurrence cited above.

This "poll" may also underscore a recognition that "actual knowledge" is, as it should be, an extremely high threshold standard. True, most criminal lawyers will remonstrate with their clients who, without being motivated by fear, suggest they might commit perjury. Thus, fortunately, it is rare that a criminal lawyer will find the need to actually inform a judge that his client intends to commit perjury. And that's the way it definitely should be.

Joel Cohen, a former prosecutor, is senior counsel at Stroock & Stroock & Lavan. He is an adjunct professor at both Fordham and Cardozo Law Schools. Dale J. Degenshein, a partner at Armstrong Teasdale, assisted in the preparation of this article. They have recently published 'I Swear: The Meaning of an Oath' (Vandeplas Publishing, 2019).