In he-said, she-said situations that are typical of family law disputes, it can be tempting for a party to commit perjury in family court in order to gain a strategic advantage. However, a lawyer’s duty of confidentiality, though strong, is not absolute. If the lawyer knows that a client has committed perjury or intends to commit perjury, the lawyer is ethically required to attempt to remedy the situation, up to and including disclosing the perjury to the court.
The Family Lawyer’s Ethical Obligations
All lawyers are bound to adhere to the rules of professional conduct in the jurisdiction(s) where they practice. In Massachusetts, that means a lawyer must adhere to the Massachusetts Rules of Professional Conduct (Mass. R. Prof. C.), and additional guidance can be found in the American Bar Association (ABA) Model Rules of Professional Conduct and related opinions. Under Mass. R. Prof. C. 3.3, a lawyer is prohibited from making false statements of material fact or offering evidence that the lawyer knows to be false:
If the lawyer has offered, or the lawyer’s client or witnesses testifying on behalf of the client have given, material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures.
These obligations extend to all “tribunals,” which include not only the courtroom, but also depositions and other situations where statements and evidence are provided under oath. The duration of the lawyer’s obligation in a given case is debatable, but certainly extends as long as the case is open, and probably also while the case can still be appealed.
What are “Reasonable Remedial Measures?”
ABA Formal Opinion 87-353 states:
If, prior to the conclusion of the proceedings, a lawyer learns that the client has given testimony the lawyer knows is false, and the lawyer cannot persuade the client to rectify the perjury, the lawyer must disclose the client's perjury to the tribunal, notwithstanding the fact that the information to be disclosed is information relating to the representation....
[I]f the lawyer knows, from the client's clearly stated intention, that the client will testify falsely, and the lawyer cannot effectively withdraw from the representation, the lawyer must either limit the examination of the client to subjects on which the lawyer believes the client will testify truthfully; or, if there are none, not permit the client to testify; or, if this is not feasible, disclose the client's intention to testify falsely to the tribunal.
In short, “reasonable remedial measures” include (1) trying to convince the client to offer truthful testimony, (2) attempting to withdraw from representation, (3) limiting the scope of questioning to avoid the perjury, and (4) as a last resort, disclosing the perjury (or intended perjury) to the court.
How Does the Family Lawyer "Know" About Perjury?
A lawyer is not required to take remedial measures merely because the lawyer suspects that a client has committed perjury or intends to commit perjury. The lawyer must have a firm factual basis, based in the lawyer’s actual knowledge, that the client has committed perjury or intends to commit perjury. The lawyer is not required to investigate the facts, but also must not turn a blind eye to situations where perjury is highly likely. Thus, if a client tells their lawyer of an intent to commit perjury, or if the lawyer is aware of contradictary evidence, the ethical obligations discussed in this article come into play.
The Financial Statement Is Sworn Testimony
The parties’ financial statements are among the most important evidence available to the family law judge, and every financial statement is signed “subject to the penalties of perjury.” Litigants might be tempted to misstate their income or expenses, conceal assets, or otherwise misrepresent their finances on their financial statements, but if the lawyer learns of the misrepresentation, his or her ethical obligations are triggered. If the lawyer learns of the misstatement before submitting the financial statement to the court, the lawyer must refuse to sign the financial statement, which sends a very strong signal to the judge that the financial statement is fraudulent. If the lawyer learns of the misstatement later on, the lawyer must attempt to remedy the situation as described above.
Take-Home Message for Parties in Family Law Cases
In family law, emotions often run high, each party has their own version (or multiple versions) of what happened, and it can be tempting to fudge the facts in order to gain a strategic advantage. This might be done with the best of intentions. However, perjury in family court is a serious matter, and discovery of the perjury—even by the party’s own lawyer—could have serious consequences. It is far better to be truthful, as much as the truth might be difficult to admit sometimes, and trust that the court will reach a fair decision based on the actual facts.
There is a lot more to know about a lawyer's ethical obligations in situations involving perjury than what is discussed in this article. For those interested, the following resources can serve as a useful starting point:
- Mass. R. Prof. C. 3.3, Candor Toward the Tribunal
- Mass. R. Prof. C. 4.1, Truthfulness in Statements to Others
- ABA Model Rule 3.3
- ABA Comm. on Ethics and Professional Responsibility, Formal Op. 87-353 (1987)
- Massachusetts Divorce Law Practice Manual §§ 2.9, 11.5, 7.2.1, 18.4.1, 26.6.1 (2009)
- Massachusetts Board of Bar Overseers Admonition No. 99-45
- Massachusetts Supplemental Probate Court Rule 401
- Charles F. Thompson, Jr., The Attorney’s Ethical Obligations When Faced With Client Perjury, 42 S.C. L. Rev. 973, 989 (1991)
- Michael A. Bloom, When a Client Gets Boxed in By a Lie, 14 Fam. Advoc. 26, 29 (1991) (“a deposition would be within the definition of activity before a tribunal”)
- Stephen H. Goldberg, Heaven Help the Lawyer for a Civil Liar, 2 Geo. J. Legal Ethics 885, 903 (1989)
- Carlton R. Marcyan, Discovering Unreported Income, 33-SPG Fam. Advoc. 12, 13 (2011)
- In re Foley, 439 Mass. 324 (2003)
- In re McCarthy, 416 Mass. 423 (1993)
- In re Neitlich, 413 Mass. 416 (1992)
- Com. v. Mitchell, 438 Mass. 535, 544 (2003)
- Com. v. Beaudry, 63 Mass.App.Ct. 488, 498 (2005)
- In re Grand Jury Subpoena (Legal Services Center), 615 F.Supp. 958, 969 (D.Mass. 1985)