Right to know: The ethical dilemma of a lying client
OCTOBER 25, 2013

OTTAWA — The relationship between lawyer and client — particularly in the context of criminal defence — is a unique one.
The client, usually accused of a criminal offence, puts an enormous amount of trust in his or her counsel. If the client does not have full confidence in counsel, the solicitor-client relationship is doomed to failure.
On the other hand, the lawyer must expect co-operation and good faith assistance from the client in preparing a defence. Unlike the lawyer, the client is often the only person “who was actually there” — and can provide a counterpoint to the police version of events and the Crown theory of the case.
Ideally, this relationship should be based on honest and open communication — by both lawyer and client.
This is not always the case.
Sometimes, clients are less than honest with themselves and with their own lawyers. This problem is further compounded when clients intend to be dishonest with the court. Although this is a rare situation, it is not unheard of.
Of course, this is a perception that is fuelled by popular media. Unfortunately, in those depictions, the criminal lawyer is often portrayed as a willing participant to the client’s deceptions.
See for example, Breaking Bad’s Saul Goodman who, had he been a member of the Law Society of Upper Canada (Ontario’s legal governing body), would have been suspended and disbarred before the closing credits of the premiere episode.
This problem raises an important ethical question: What should a lawyer do when confronted with the situation where a client intends to give false evidence at trial?
This situation is often referred to as “client perjury.” Of course, “perjury” connotes the commission (or anticipated commission) of a specific criminal offence.
However, this dilemma extends beyond situations where the spectre of actual perjury has been raised. It relates as well, to any suggestion by the client of an intention to mislead a tribunal or an instruction to counsel to assist in so doing.
One of the earliest examinations of the issue of client perjury was conducted in 1966 by Monroe Freedman, an American professor and law dean.
The legal community’s response to his writings on the subject is fascinating and emblematic of the controversial nature of this ethical quandary.
In fact, U.S. Supreme Court Chief Justice Warren Burger and two other U.S. Federal Court judges unsuccessfully lobbied to have Prof. Freedman disbarred and fired from his faculty position following his public lectures on the subject.
Prof. Freedman framed the problem as an “ethical trilemma” — in which defence counsel’s three chief ethical obligations conflicted with one another. First, lawyers have duty of professional competence. By definition, that involves amassing all relevant information that can aid in the defence of the client’s case.
Second, defence counsel owes a near-absolute duty of confidentiality to the client. Generally, this operates to prevent defence counsel from disclosing any confidential information except with the consent of the client and for the client’s benefit.
Third, counsel has a duty of candour and frankness to the court. In the context of client perjury, this necessarily means that counsel would have an obligation to reveal confidential information in order to prevent — or in the case of already-committed perjury, to correct — fraud on the court.
According to Freedman, in the context of client perjury, these three duties cannot coexist. Something has to give. Hence the ethical trilemma.
Interestingly, Prof. Freedman resolved this conflict by advising defence counsel to permit their clients to testify, even when they know that the testimony being given is false.
This approach is not sanctioned in Canada and is specifically prohibited by the Rules of Professional Conduct that bind Ontario lawyers.
Instead, Canadian defence lawyers are required to balance their duty to their client with the duty they owe to the court to be honest and forthright, and most importantly, to never deceive or mislead any tribunal.
A lawyer’s duty begins at the very first client meeting. Accordingly, the open and honest nature of the solicitor-client relationship should be explained to clients at the outset.
Defence counsel should make it clear that there may be ramifications when certain facts are disclosed by the client. While defence counsel is ethically required to vigorously advance the client’s case — this cannot be done on the basis of false or misleading information.
If a client clearly expresses an intention to lie in court, counsel is prohibited from simply doing nothing.
A lawyer’s first recourse should be to attempt to convince the client that lying to the court is prohibited, both as a matter of criminal law and legal ethics. The lawyer should tell the client that he or she cannot participate in any such deception.
If the client persists in expressing an intention to commit perjury, usually the lawyer will have no choice but to withdraw as counsel. In general, counsel will not be permitted to disclose the reason for withdrawal — solicitor-client privilege and confidentiality still applies — but it would be contrary to the lawyer’s ethical obligations to assist the client in any illegal or dishonest course of action.
Canadian criminal defence lawyers are required to be fearless and zealous in the defence of their clients. However, they also owe a duty to the court and to the administration of justice — they cannot deceive or mislead the court. To do so would be contrary to the defence counsel’s role as an officer of the court, notwithstanding the antics of TV’s “Better Call Saul.”
Solomon Friedman is a partner with Edelson Clifford D’Angelo Friedman LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website, www.affordabledefence.com.