81st Installment. Loyalty to Client versus Candor with Court: Client Perjury and Related Bugbears

Officer-of-the-court jurisprudence—ethics that take seriously some lawyers’ self-important belief that they’re “officers of the court”—has been the most divisive issue among legal ethicists since the ABA’s 1908 promulgation of the Cannons of Professional Ethics. Where loyalty to client is pitted directly against duty to court, consensus dissolves, as it does concerning managing client perjury: one jurisdiction mandates practices another rejects as unethical. For decades the rule that a lawyer commits misconduct when he allows his client to commit perjury has been the most heated topic debated in law-school "professional responsibility" classes, but debate hasn't produced consensus. For adherents of officer-of-the-court jurisprudence, the issues are candor with the court and facilitation of crime. For adversarial lawyers, anointing lawyers agents of the court—duty bound to screen clients for truthfulness before the jury takes its turn—smacks of the Star Chamber, where lawyers were empowered to prejudge their clients' credibility and burdened with responsibility for their clients' lies. (A. Sterling, Truth, Justice, and the American Way: The Case against the Client Perjury Rule (1994) 47 Vand. L. Rev. 339.)

The threatening ascendancy of officer-of-the-court jurisprudence erodes lawyers’ loyalty to clients to where both bar courts and respondents don’t even notice client-centered ethical issues, in the following example, confidentiality. Consider the following as if it were a hypothetical on a Professional Responsibility exam; we’ll call it hypothetical because incidental facts have been changed to avoid identifying respondent attorney:

Attorney, having exhausted the allowed extensions of time, is late in filing an appellate brief. Attorney deceptively backdates the document, which the clerk mistakenly files. Attorney denies the backdating when opposing counsel challenges him, but before the court rules, attorney admits the deception. The court strikes attorney’s brief, causing attorney’s client to lose the appeal. After opposing counsel files a professional-discipline complaint, what culpability should the state bar find?

Neither the bar court nor the respondent recognized the confidentiality issue: the state bar treated the breach of client confidentiality as mitigating the deception's culpability, respondent as exonerating that offense's commission. Any second-year student who doesn’t find an issue of breach of client confidentiality in the hypothetical should fail the exam. But lawyers? However ethically serious they consider petty deception of the judiciary or however unseemly they consider baseless intransigence, lawyers should be unanimous on the case’s central ethical issue: should attorney unmask his own deceit? The answer should be a resounding No! Every lawyer must understand the most basic ethical premise of law practice: lawyers don’t fink on clients; despite many jurisdictions’ requiring it, ethical lawyers refuse even to report clients intending perjury. (A. Sterling, supra at p. 423, fn. 311 [anonymous survey of the District of Columbia bar revealed that 90% of those surveyed would call the perjurious criminal defendant to the witness stand and conduct the defense as if the client had testified].) Every lawyer should understand that legal representation is an agency relationship, where his client’s case may suffer if the court discovers attorney’s transgressions. (See J.A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court" (2000) 48 Buff. L. Rev. 349 [centrality of agency law in governing American lawyers since the Revolution].) Attorney sacrificed his client’s interests for personal moral purity—or for expected and received mitigating consequences.

Attorney’s knowledge that his filing was untimely is privileged because attorney acquired the information in the course of representation, but officer-of-the-court jurisprudence hugely distorted both parties’ ethical understanding. The state bar and respondent assumed the existence of duties to the court overshadowing client loyalty. They differed only in the state bar’s regarding the retraction as mitigating attorney’s lack of candor, while attorney regarded it as complete excuse—although attorney rectified his acts of deception by committing a worse ethical transgression, sounding in breach of confidentiality. Cleansing an attorney’s soul of guilt at a client’s expense sacrifices the client’s interests to the attorney’s no less than betraying a client for money. Between deceiving the court and undermining his client by disclosure, the uncharged disclosure of the filing date’s falsification is the severer transgression.

All fundamental legal rights depend on attorneys' performing their duty of loyalty to clients. The right to be heard withers without attorneys who loyally represent their clients, and the tyranny of lawyers’ morality oppresses more than does ordinary corruption: from Watergate to the torture memos, moral ideology rather than personal profit motivates the greatest lawyerly crimes. While absence of due process in the bar courts rebuts calls for harsher penalties, discipline is lax for lawyers who excuse their disloyalty because they subject clients to conscientious dictates, not greedy appetites. Contrast attorney’s actual suspension for less than six months to the two-year suspension a state-bar court imposed on a lawyer lacking moralistic self-justification for deceiving a federal court about filing dates.