Walking the Tightrope: What to do When Your Client Lies During Deposition
By Diana K. Rodgers, Esq.
Diana K. Rodgers is an attorney in the law firm of Nemecek & Cole in Sherman Oaks, California. She is a member of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. The opinions in the article are her own.
Your potential client has been sued for trespassing on her neighbor's property and damaging expensive new landscaping. She tells you, earnestly and convincingly, that she was not home on that date or time. You are not entirely sure she is telling the truth, but she will make a great witness, and will pay your hourly rate. You eagerly agree to defend her.
Months later, you are preparing your client for her deposition. She admits that her dogs damaged plaintiff's landscaping; since there are no witnesses and no video footage of the incident, though, she tells you she plans to testify she was not on her neighbor's property but was hiking with her dogs in another city. Her deposition begins in 15 minutes. Should you kick her under the table if she starts to lie? Interrupt her testimony? Call off the deposition? Or should you let her testify to whatever she wants? After all, she is the one being placed under oath and she will bear the consequences of giving false testimony, right?
Duty of Candor
California Rules of Professional Conduct (RPC) Rule 5-200 provides that "[i]n presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with the truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law."
Business and Professions Code Section 6068, Duties As An Attorney, provides that an attorney has a duty "(d) [t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law."
In other words, an attorney has a duty of candor to the court, and has a duty to conduct herself in a manner consistent with the truth. Rule 5-200 refers to misleading the judge, judicial officer, or jury; but depositions are proceedings before an officer commissioned by the court to take testimony under oath, and are covered by the rule. Penal Code Section 118 provides that perjury may occur when a person "depose[s]" in an intentionally false manner.
Duty of Confidentiality
An attorney also has a duty of confidentiality to her client. Evidence Code Section 952, Confidential Communication Between Client and Lawyer, defines such a communication as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted . . . ." RPC Rule 3-100, Confidential Information of a Client, provides that "(A) A member shall not reveal information protected from disclosure by Business and Professions Code Section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule."1 Business and Professions Code Section 6068 subdivision (e)1 (1) provides that a lawyer has a duty to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." In short, the lawyer has a duty to maintain, at every peril to herself, her client's secrets. Certainly a client's intent to lie is a secret.
California Penal Code Section 118 subdivision (a) provides that "[e]very person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false . . . is guilty of perjury. . . ."
When an attorney knows that her client is about to or is testifying falsely regarding a material matter, the attorney's ethical duties of candor and confidentiality directly conflict. The attorney cannot divulge to opposing counsel that her client is lying as this would violate the attorney's duty of confidentiality to her client. The attorney cannot permit her client to lie during the deposition without violating the attorney's duty of candor to the tribunal. The RPC do not address whether one ethical duty trumps the other, and an attorney must comply with both. "Counsel should not forget that they are officers of the court, and while it is their duty to protect and defend the interests of their clients, the obligation is equally imperative to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice." 2
The State Bar Committee on Professional Responsibility and Conduct (COPRAC) addressed this conflict in Formal Opinion 1983-74 and concluded that while an attorney does not have a duty to apprise the court of her client's testimonial perjury, she has a duty to "promptly pursue remedial action."3 When confronted with a client whom the attorney knows is testifying falsely: 1) The attorney should immediately have a private conference with her client and explain the basis for her opinion that the client has committed perjury. The client may be able to offer an explanation that would change the attorney's opinion. If the attorney's opinion is not changed, or if the client concedes that she has committed perjury, the attorney must explain the full ramifications of attempting to correct the perjured testimony (e.g., cross-examination, potentially losing the case, and potential criminal prosecution for perjury). 2) The attorney must explain the ramifications of trying to remove the perjurious testimony from the record. The attorney may seek, without explanation, a stipulation striking the (false) testimony. If the court denies the motion, the attorney must make a motion to strike on any available ground other than the perjurious nature of the statements. 3) If the matter is not stricken, the attorney must make a motion to withdraw without divulging that the client committed perjury. 4 4) If the court denies the motion to withdraw, the attorney may not rely upon or refer to any of the perjurious testimony.
You will need to take a break to speak with your client and take the steps set forth above. Whether you should do so during your client's testimony or afterwards is a judgment call that will depend on the circumstances and the testimony. For example, interrupting your client's testimony may raise too much attention, but waiting until later in the deposition to revisit and change the earlier testimony may make opposing counsel suspicious. Or opposing counsel may not agree to go off the record just after the false testimony is provided, and you don't want to raise too much attention by insisting upon a break—after all, you have a duty to preserve your client's secrets and not trumpet to opposing counsel that the testimony just provided is false.
If it is not possible to take a break to discuss your client's testimony (perhaps the false testimony is given at the very end of the deposition after which your client hastily departs), or if a portion of the false testimony remains in the record, then you should review the deposition transcript with your client and make the changes or additions necessary to render the testimony truthful and accurate, and do so within the time limits agreed upon in the stipulation (or per code) to make such corrections. While correcting the transcript after the deposition can remove false testimony contained in the transcript, the transcript is simply the record of the proceeding; the lawyer should still make an effort during the proceeding to convince her client to testify truthfully pursuant to her duty of candor and "to aid the court in avoiding error and in determining the cause in accordance with justice and the established rules of practice."5 Additionally, as most of us have told deposing witnesses, correcting the transcript after the deposition (for example, changing a "yes" to a "no") can expose that witness to arguments that she lied during her deposition, which of course can affect her credibility at trial (or affect the settlement value of the case.)
What if you merely have a suspicion your client is testifying falsely? In a new hypothetical, your client has not said she plans to lie in the deposition, and has told you she owns a Labrador retriever and a miniature poodle. Plaintiff's counsel has told you he has video footage of two big dogs trampling his landscaping. Formal Opinion 1983-74 also states that if the attorney is merely suspicious that perjury is occurring and does not "know" that her client is lying, the attorney should resolve the doubt in favor of [her] client.6 Nevertheless, the opinion is not implying that "actual knowledge" is the only state of mind that may trigger an attorney's duty to act.7 Therefore, view your client's testimony with a healthy dose of common sense.
Our hypothetical involves a civil proceeding in which the client does not have a constitutional right to testify. A client in a criminal matter, however, does have that right. When a criminal defendant intends to testify falsely, California law suggests that the lawyer should permit her client to testify in narrative fashion, and the lawyer should not rely upon the false testimony in closing arguments.8 Attorneys representing criminal defendants should review the case law regarding perjury committed by their clients since the methods for handling these situations are different.
Finally, what if a third party deponent (not your client) testifies in a manner you know to be false? What duties do you have? The duty to preserve a client's secrets is not implicated; but the duty of candor is, and you have a duty to attempt to correct the false testimony. Remember that any discussions you may have with the third party witness regarding whether or not to change his testimony is not privileged.
A violation of the duties of candor or confidentiality can result in discipline by the State Bar. Pursuant to Business and Professions Code Section 6128, an attorney who deceives the court or any party may be guilty of a misdemeanor punishable by a fine, imprisonment, or both (and contempt proceedings can be initiated by the court.) Since attorneys are not usually aware that their clients will be testifying falsely, they must be nimble and prepared to comply with the duty of confidentiality and the duty of candor. Keep a copy of Formal Opinion 1983-74 handy in the event your client goes off the rails and you need to act fast to protect your client and yourself.
1 RPC Rule 3-100 subparagraph (B) relates to disclosure of a confidential communication to prevent a criminal act the attorney reasonably believes is likely to result in death or substantial bodily harm.
2 Furlong v. White, 51 Cal. App. 265, 271 (1921).
3 Formal Opinion No. 1983-74, p. 1.