Batey, Robert

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Criminal Law Defense, Ethics, and theClient Who Plans to LieINTRODUCTIONRobert Batey*Although published over forty years ago, Monroe Freedman'sProfessional Responsibility of the Criminal Defense Lawyer: The ThreeHardest Questions' continues to reverberate through Americanjurisprudence. In an effort to raise some of Freedman's questions in thecontext of contemporary plea bargaining, eight lawyers were asked torespond to the hypothetical below,2 restricting their answers to five-to-ten "lightly footnoted" pages each.3  Professor Freedman kindlyconsented to comment on these submissions, and to accept a similar limiton his comments. The product of all their efforts is a pithy andprovocative commentary on a situation that arises all too frequently intoday's criminal courts.You are a lawyer representing a defendant in a federal drug prosecution. Theallegation against your client is that she transported heroin into the United Statesby concealing it on her person; the principal evidence against your client is theheroin seized from her during lawful police procedures upon her arrival by air intoTampa International Airport. Your candid assessment of the evidence against yourclient is that she will very likely be convicted and sentenced to a long prison term.In your discussions with your client, she has mentioned that she is wellacquainted with a man who is reputed to be a "drug kingpin" in the Tampa Bayarea. You know from conversations with your friends in the local federalprosecutor's office that there is substantial interest in making a case against thisman, who has thus far eluded prosecution.You have already generally informed your client that she might be able toreduce her sentence if she provides "substantial assistance" to the prosecution inProfessor, Stetson University College of Law.Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: TheThree Hardest Questions, 64 MICH. L. REV. 1469 (1966).2 For several years I have included this hypothetical in a reading assignment in my first-yearCriminal Law course that includes Freedman's article and the relevant Florida versions of the ModelRules of Professional Conduct.3 The editors of this journal wisely decided to suspend this limit in order to publish the newABA Criminal Justice Standards on Prosecutorial Investigations as an appendix to Rory K. Little'ssymposium contribution.OHIO STATE JOURNAL OF CRIMINAL LAWtheir pursuit of other lawbreakers. Should you also specifically draw your client'sattention to the government's interest in her friend, the reputed drug kingpin, eventhough you know this might tempt your client to commit perjury in testifyingagainst him?Assume that you have had this specific conversation with your client, and thatshe subsequently agreed with the prosecution to provide detailed testimonyregarding the drug kingpin's illegal operations, in exchange for which she willplead guilty to a reduced charge and receive a short sentence after she testifiesagainst the kingpin. As her attorney, you have assisted her in reaching thisagreement.Sometime before the kingpin's trial (and thus before your client has enteredher guilty plea and been sentenced), she confesses to you that her testimony againstthe kingpin will be "all lies-I figured out what those prosecutors wanted me tosay, and I'm gonna say it." You advise the client against this procedure, but she isadamant, saying that this is the only way she can avoid a long sentence--"andbesides, I'm convinced that guy is dirty, I just can't prove it. He was too carefularound me." Assuming that you believe your client is now telling you the truth,what are your ethical obligations?Are you required to withdraw from representing your client? If not, are youpermitted to do so? Are you required to inform the court of her perjury? If so,which court-the one trying the kingpin, the one to which she plans to pleadguilty, or both? If you are not required to disclose, are you permitted to do so?And once again, to whom?[Vol 7:637

Criminal Law Defense, Ethics, and the Client Who Plans to Lie

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Criminal Law Defense, Ethics, and the Client Who Plans to Lie

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