Duty of truthfulness replies

An attorney faced with the dilemma of potentially having assisted a client in giving
false testimony to a court is faced with the arduous task of finding a resolution that
satisfies existing ethical and legal rules as well as fulfilling professional obligations
owed to the court and the client.
The obligation owed to the court is a course of action, which simply stated involves
doing the right thing and correcting the wrongdoing to which one contributed or gained
knowledge of. In addition to the criminal legal ramification of committing perjury the
obligation owed to the court derives from the authority of the American Bar Association
(ABA) which states in its “Model Rules of Professional Conduct” that an attorney having
knowledge of false testimony is “required” to take “reasonable remedial measures”
which include disclosure to the court should those measures fail. 1 Unsurprisingly the
exact answer to what should be done cannot be found readily available and relevant to
the given situation. The facts surrounding the matter must be determined and then the
rule applied using its provisions as they best match the situation.
While the Model Rules illustrate what is required of an attorney with knowledge of
false testimony, there are advocates for an alternate approach which places greater
emphasis on the importance of civil rights including confidentiality between attorneys
and their clients. Once such champion of this approach, Professor Monroe Freedman
supported the notion that an attorney should not reveal knowledge of false testimony by
a client even if the course of cross-examination. 1
The course of action mandated by the Model Rules conflicts to some extent with itself
in respect to Model Rule 1.6 which defines the obligation an attorney incurs through
their duty of confidentiality; however this rule as well is “not absolute” and is subject to
situational and contextual circumstances. 1

From a biblical perspective the duty to the court would outweigh any other
consideration as it involves ensuring that the truth is known, and a lie is not allowed to
persist. Scrutiny and judgement of how a complex ethical dilemma was navigated by a
governing authority may be of grave concern and cause for anxiety. The repercussions
can be severe but compared to the repercussions of advancing a lie they may be
considered mild. The Bible tells of six things God hates and seven that are an
abomination, among them are a “false witness.” 2
Knowing that the client had NOT finished the required traffic school would reinforce
my commitment to seeing justice truly administered both for the client and for what we
are commanded to do by His word.

Part II
Attorney-Client privilege and the confidentiality implied by it would be best served if the
duty of confidentiality remained binding even upon the death of a client. Exceptions of
some form are inevitable just as there is at least some limit on the absolute freedom of
speech Americans perceive to possess. Just as in the case of free speech, each and
every stipulation or exception placed on it weakens the right and the entire concept.
Post mortem revelations about clients would most likely have a chilling effect on
communication between client and counsel if there were a perception that one’s lasting
image could suffer irreparable damage.
The ABA Model Rules list 10 specific exceptions to the disclosure of confidential
information. Among them are: with the client’s consent, and to prevent assisting a crime
or fraud, not listed is in the instance of death. 1

1 Nathan Crystal, Professional Responsibility: Problems of Practice and the Profession
141, 167, 171 (2020).
2 Proverbs 6:19 (King James).

Jacob N
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Thread 1
The lawyer has ethical duties to follow many rules, however the rules that pertain most
to this case is the requirements of communicate with their client,[1] provide candid
advice,[2] as well as the responsibility to not make false statements.[3] From the

information provided the lawyer acted diligently in communicating to the judge sound
reasoning as to why the client should not be found guilty. The lawyer also
communicated with the client promptly while keeping the client reasonably informed.
The lawyer also refrained from making a false statement as to wether or not the client
had completed the driving school.
The area of concern is wether or not the lawyer had a duty to inform the judge that he
was unsure of the clients successful completion of the driving school. However, the
judge affirmed that the required tasks were complete. Although not required, the lawyer
should make the court aware that he is unsure and in order to ensure justice, suggest
that the court confirms the completion of the driving class. The Bible supports this is
Proverbs 11:3, which says "The integrity of the upright guides them, but the unfaithful
are destroyed by their duplicity.".[4] This verse supports the decision to inform the court,
because it uphold integrity. Would the lawyer uphold the integrity of the court by not
ensuring that the judges documents were accurate in reporting that the client
completed the driving course? I believe that by the lawyer ensuring the accuracy of the
judges documents, he is helping to preserve the integrity of the court.
My answer to what the lawyer should do when he is unsure of the clients completion of
the driving course is even more true if the lawyer knew the driver did not complete the
course. The lawyer has a Biblical duty to act with integrity and inform the court of the
truth. If the court said he didn’t do the course and he did, wouldn’t the lawyer argue and
attempt to provide proof that the client did? Whats the difference between knowing that
the client did not complete the course and the judge says the client did? The lawyer has
a Biblical responsibility to inform the court of the truth.

Thread 2
As explained in chapter 10 of Lawyers Crossing Lines: Ten Stories, Hughes was forced
to live with the guilt of a man being in prison for crimes he did not commit. Hughes kept
quiet because of the attorney-client confidentiality, but eventually took the stand to
present what he knew regarding the case that his client Cashwell told him in
confidence.[5] I believe that because Cashwell was deceased and the withholding of
truth was preventing justice, Hughes should not be held accountable to Rule 1.6.
I believe that death should not always relinquish an attorney from confidentiality,
however in instances where a client has admitted to his attorney to being guilty while
another person who is innocent is going to be found guilty, the attorney should have the
ethical responsibility to report their knowledge to the court and not be held liable to Rule
1.6.
I found in the article Legal Ethics, Confidentiality, and the Organizational Client that "In
adopting the new Model Rules, however, the ABA House of Delegates rejected the
Ethics 2000 proposed exceptions authorizing (but not requiring) a lawyer to make
disclosure "to prevent [a] client from committing a crime or fraud that is reasonably
certain to result in substantial [financial] injury [to] another.".[6] I found this interesting

because it rejected the exception even though it caused financial harm to another. This
seems to defeat the purpose of ethical rules, when rules prevent true justice from
occurring.

[1] Model Rules of Professional Conduct R. 1.4 (2019).
[2] Model Rules of Professional Conduct R. 2.1 (2019).
[3] Model Rules of Professional Conduct R. 4.1 (2019).
[4] Proverbs 11:3 (New International Version).
[5] Michael L. Seigel and James L. Kelley, Lawyers Crossing Lines: Ten Stories, 2nd
edition, 214 (2010).
[6] Larry P. Scriggins, Legal Ethics, Confidentiality, and the Organizational Client, Vol. 58,
No. 1, 126 (2002).