Wat should a criminal lawyer do when he believes his client is going to commit perjury? It is another way of asking what is a lawyer's obligation. Must he use any means conceivable to get his client off, and leave it to the adversary process to produce a fair result? Or does he have obligations to society and/or the court? The Supreme Court, in upholding the conviction of a defendant whose lawyer prevented him from giving what he regarded as perjured testimony, has provided a sensible answer to the narrower question and has given some useful direction on the broader issues.
The Supreme Court's decision was a unanimous reversal of a lower court decision. All nine justices agreed that the defendant was not deprived of any right he had, because he had no righto testify falsely. Four justices went no further and would have upheld the conviction on those grounds. Chief Justice Burger, speaking for the majority, examined also the question of whether the lawyer's conduct "fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment."
The chief justice's opinion finds that Iowa law, the American Bar Association canons and the 1983 model rules of professional conduct, far from obliging lawyers to assist clients in presenting perjured testimony, require them to prevent or divulge it. That comports with common sense. But there is something troubling about the thrust of the court's opinion that the limits of the right to counsel are determined by "reasonable professional standards." A constitutional right surely cannot be limited by a resolution of a bar association or a code of ethics sanctioned by a legislature.
A better point is that made later in the opinion that a lawyer's duty to represent a client does not require him to commit the crime of suborning perjury. Surely when the Framers created a right for criminal defendants they were not imposing on the defendants' lawyers an obligation to commit what was then and is now universally regarded as a crime.
"The responsibility of an ethical lawyer," Chief Justice Burger writes, "as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors to commit or procure perjury." The decision does not set forth a specific set of standards itself, but effectively enjoins lawyers to adhere to local laws and codes of ethics. This will disappoint those who see trials as a no-holds-barred battle between adversaries. But it does not go so far as to hold that anything goes in "a search for truth." Clients may still try to get away with perjury. But lawyers have been signaled that they are permitted to and may be under a duty to keep them from doing so.