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The Next Assault on the Attorney Client Relationship

By Jeralyn, Section Law Related
Posted on Wed Jun 01, 2005 at 08:50:36 AM EST
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The state of Washington is proposing to change its ethical rules for lawyers to require defense lawyers to tell the court if they later learn their client told a lie.

Some lawyers say the proposed rule would not only crush the whole idea of attorney-client confidentiality, but it would force them to reveal things that could get the very people they're supposed to defend put in jail, convicted or charged with perjury.

"I think it's terrible," said lawyer David Trieweiler, co-chairman of Washington Association of Criminal Defense Lawyers' rules committee. "It profoundly alters the traditional role of defense attorneys by making us into tools of the prosecution, instead of defenders of our clients."

Several states already have enacted the rule, based on an ABA model rule. I think Washington's current rule is much better.

As it stands now in Washington, lawyers can't knowingly offer false information in court, and they can't put their client on the witness stand if they know the client will lie.

An attorney who later realizes a client has lied and can't fix it -- by persuading the person to tell the truth, for example -- usually asks to be removed from the case to avoid becoming part of the deceit.

Examples of where the new rule would be overly detrimental to the attorney client relationship:

What if an arrested man persuades a judge to release him without bail, explaining that he lives with his mother and has a full-time job, and the lawyer later learns that neither is true? The lawyer would have to tell the judge -- probably ensuring that the client gets locked up, Rodriguez said.

Or what if the lawyer has to tell the judge that a client said something untrue on the witness stand? Prosecutors might be able to use the information to help their case, or it could prompt the judge to call a mistrial.

Defense attorneys say the new rule would discourage defendants from telling them anything for fear they might decide, even wrongly, that something is a lie. "It really destroys that sense of trust that clients need to have in their attorney," Trieweiler said. "There's no reason to create this rift."

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    The Next Assault on the Attorney Client Relationship | 4 comments (4 topical)
    Re: The Next Assault on the Attorney Client Relati (none / 0) (#1)
    by roy on Sat Dec 17, 2005 at 12:59:32 PM EST
    (Holy crap this is a long post... TL, you won't offend me if you delete this for wasting your bandwidth) I'm wildly disconnected from the legal world, so maybe I just don't get it, but this seems like a reasonable rule. If an attorney lets a lie stand, it's kind of like hiding evidence, which (based on watching Matlock reruns) is already a no-no. Withdrawing from the case doesn't solve that problem, it's just a CYA maneuver. The article's examples of why it's a bad rule don't move me, either.
    What if an arrested man persuades a judge to release him without bail...
    Irrelevant; the rule is only for civil cases. But, let's say it applied to criminal cases. If the man is out of jail based on a lie, then he actually belongs in jail. Putting him there isn't a bad thing.
    Or what if the lawyer has to tell the judge that a client said something untrue on the witness stand? Prosecutors might be able to use the information to help their case, or it could prompt the judge to call a mistrial.
    Not a problem. If the truth helps the other side, then it's a whole lot like hiding evidence -- see my Matlock remembrance. As for a mistrial, is it better to allow the trial to procede based on false information?
    "It really destroys that sense of trust that clients need to have in their attorney,"
    Trust isn't the only thing the client needs. He needs honesty. And is preserving the sense of trust for liars more important than ensuring the court decides based on truth?
    ...reveal things that could get the very people they're supposed to defend put in jail, convicted or charged with perjury.
    See hiding evidence again. As for perjury, aren't attorneys obligated to report a crime if they know about it?
    Defense attorneys say the new rule would discourage defendants from telling them anything for fear they might decide, even wrongly, that something is a lie.
    Yes, that's a problem, but not a big one. It's already a possibility with lawyers withdrawing when they think they've been lied to. If a supposed lie is reported to the court, the court can evaluate whether it was really a lie. Courts are supposed to be good at that sort of thing. So I don't have a problem with this so long as A) attorneys on both sides are required to reveal lies, and B) there is a not-too-vague standard for when the rule applies..

    Re: The Next Assault on the Attorney Client Relati (none / 0) (#2)
    by jarober on Sat Dec 17, 2005 at 12:59:32 PM EST
    "What if an arrested man persuades a judge to release him without bail, explaining that he lives with his mother and has a full-time job, and the lawyer later learns that neither is true? The lawyer would have to tell the judge -- probably ensuring that the client gets locked up, Rodriguez said." So what? If the prosecution lied in a similar matter, are you telling us that you think it should have no impact on a case?

    Re: The Next Assault on the Attorney Client Relati (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:33 PM EST
    I notice that this appears (from the link, at least) to apply only to defense attorneys. Prosecutors remain free to use cooked evidence and "testilying" witnesses. Five bucks says the attorneys trying to push this are Republicans.

    Re: The Next Assault on the Attorney Client Relati (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 12:59:35 PM EST
    I don't have a problem with this so long as . . . there is a not-too-vague standard for when the rule applies..
    Well, that's a big part of the problem, of course. Your client insists that he's innocent, but the prosecution has a ton of evidence of guilt. After your client gets convicted, do you get disbarred?

    The Next Assault on the Attorney Client Relationship | 4 comments (4 topical)