Client Perjury: The Kutak Commission and the Association of Trial Lawyers on Lawyers, Lying Clients, and the Adversary System

Abstract

Attorney involvement in client perjury is a restive issue that does not admit of easy resolution. Many other issues are addressed by the Kutak Commission in its proposed revision of the American Bar Association's recommended rules of attorney conduct. But few have raised such a spirited professional and public debate as the Commission's broad proposal for required disclosure of client dishonesty. Whistle blowing by counsel is mandated in some instances, permitted in the attorney's discretion in others. Counsel for parties in negotiation are carefully circumscribed in presenting misleading information to others. And the lawyer whose client commits known perjury on the witness stand is under an explicit obligation to correct the perjury. All of these rules are part of the Commission's thematic development of a broad social dimension to the lawyer's work—a dimension that, in the Commission's view, requires more explicit recognition of the lawyer's obligations to third parties and to social institutions such as the courts to assist them in their work. The range of issues presented is very extensive, and the present review will deal only with the client perjury problem.