NCJ Number
112484
Journal
University of Pennsylvania Law Review Volume: 136 Issue: 6 Dated: (June 1988) Pages: 1939-1956
Date Published
1988
Length
18 pages
Annotation
The 1986 U.S. Supreme Court case, Nix vs. Whiteside, raises several issues with regard to lawyer-client communications and client perjury.
Abstract
Two of these issues were raised by the justices during the case: What should a lawyer do in case of actual or anticipated client perjury, and what is the standard of knowing a lawyer should meet before acting on the conclusion that the client's testimony will be perjurious. Despite the Court's interest in these issues, no satisfactory answers were provided during oral argument or in the opinions. In addition, Whiteside raises the issue of whether the fifth amendment privilege against self-incrimination is implicated when a lawyer divulges or threatens to divulge incriminating lawyer-client confidences to the court. To establish a relationship of trust and confidence with a client, lawyers should emphasize that they must know everything about the charges against the client, and that information will be held in strict confidence. If attorneys learn that a client is going to commit perjury, they should attempt to dissuade the client. Dissuasion might include threats of adverse tactical or legal consequences, including a longer sentence, but should not include threats to betray the pledge of confidentiality. If the client persists in giving false testimony, the lawyer should withdraw from the case if this can be done without significant harm to the client. If this is not possible and dissuasion fails, the lawyer must present the client's testimony and maintain confidentiality. Any other course would result in clients distrusting their lawyers and withholding information. 94 footnotes.