Utah Bar Journal

However, the fact remains that, on many occasions, we suspect that our clients are guilty of some crime – either after we have talked with them or after we have conducted a thorough investigation. If our clients tell us that they want to go to trial despite our conclusion that they are lying to us about their innocence, an interesting question presents itself. That question is whether Utah Rule of Professional Conduct 2.1 and American Bar Association Model Rule of Professional Conduct 2.1 (collectively, Rule 2.1) allow us to advise our clients of their moral obligations to be honest to the courts, themselves and any victims, and to consider whether they should plead guilty, if they are in fact guilty, and accept responsibility for what they have done. We would provide such advice not only because the evidence may be stacked against our clients and a plea offer would benefit them – but because doing so would develop our clients’ character and weaken their ability to commit fraud upon the courts through their lawyers.

Some of you might say, No way! Lawyers are not in the business of monitoring our clients’ moral IQs. Our jobs are to be zealous advocates and get our clients off – even when we suspect that they are guilty. The Sixth Amendment to the United States Constitution requires nothing less. For the following reasons, I respectfully disagree. The ABA’s Model Rule 2.1 (adopted by the three state bar associations to which I belong) states in Comment 2 that “it is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.” Comment 2 also states, “Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.” And, although Comment 5 states, “In general, a lawyer is not expected to give advice until asked by the client,” it goes on to say that “a lawyer may initiate advice to a client when doing so appears to be in the client’s interest.”

Rule 2.1 and its comments beg the question: is it not in our clients’ best interests that we discuss their moral responsibilities with them when we suspect that they are not being honest with us and yet they want to go to trial? Certainly providing advice ancillary to culpability for a client addicted to drugs, such as getting into a rehab program, getting a job or an education, and/or moving out of a destructive environment, does not seem problematic. However, what if a lawyer suspects that an apparently lying drug dealer wants to get off by going to trial? Does Rule 2.1 allow the lawyer to suggest to the client that he should plead guilty, and consider an alternative line of work, by confronting the client with the facts of the case and how the drug-dealing business fries people’s brains and/or grossly taxes the economy unnecessarily through theft loss, court costs, legal fees, police salaries, and prison expenses, etc.?

On other occasions, a client’s story may repeatedly change as the lawyer’s investigation of the client’s statements and other facts reveal that the client probably has been lying to the lawyer. Does the lawyer do a disservice to the client and the court by not vigorously confronting the client with the inconsistent statements and requiring that the client be truthful? And wouldn’t the client be better served as a human being (and society as well) if the lawyer took the time to talk to the client about taking responsibility for his or her mistakes, making amends to any victim, and leading a more productive and moral life? To both of these questions, I wholeheartedly say “yes.”

If our clients have never learned the value of making beneficial moral choices for themselves and those whose lives they negatively influence, then I say it is about time that they did. We as members of the criminal law bar are in the prospectively enviable position of being able to advise persons charged with crimes of their moral options and responsibilities on a regular basis. Additionally, by the time serious criminal charges have been brought, our clients may be at a point in their lives when they are willing to listen to their lawyer’s moral advice, now that they face prison, gross embarrassment, and/or substantial economic and social setbacks. Our clients may not have learned the value of making sound moral decisions from their families, at school, or from anyone else. Indeed, our clients may have even learned from their like-thinking peers in a morally bankrupt environment that to commit crimes is praiseworthy. It is specious to say that lawyers are being elitists for discussing their moral concerns about lying to the courts with their clients when the latter want to effectively commit a fraud upon the courts through their lawyers. It is also specious to say that lawyers should not advise their clients to avoid behaviors which have already been deemed improper by the people’s representatives. Indeed, the Rules of Professional Conduct and criminal law already have outlined the appropriate path for both the client and his or her lawyer in such instances. Lying to the court is an ethical fraud, and getting one’s lawyer to unwittingly produce false evidence equates to a variety of crimes; e.g., perjury, witness-tampering, obstruction of justice, etc.

In advocating the position to give moral advice to clients faced with criminal charges when we suspect that they are lying to us, I surely am not suggesting that we abdicate our responsibilities under the Sixth Amendment. Indeed, I firmly believe that an accused’s right to effective assistance of counsel must not be compromised in any way by offering moral advice to them. Indeed, if our clients ignore our moral advice, we should not become less zealous. And, as a practical matter, we need to tread very cautiously when we broach this subject with our clients in the first place. We should also, undoubtedly, try to the best of our abilities, to get our clients off, even when we believe that our clients are guilty, or when they tell us that they are guilty but want to proceed to trial.

But such a position has its ethical limitations. At the least, Utah Rule of Professional Conduct 3.3 and ABA Model Rule of Professional Conduct 3.3 (collectively, Rule 3.3) require an attorney to advise his or her client not to commit perjury by testifying falsely about the facts of the case at trial (if that is the client’s intent) and to take remedial measures if the client does so. Comment 9 of Rule 3.3 also allows the lawyer the discretion not to present untrustworthy evidence. Thus, under both of these positions, if a lawyer suspects that his client is lying about certain facts of the case, the lawyer may have good reason to suspect that the client is lying about other evidence that the client wants the lawyer to present and may decide not to present any such evidence. Indeed, under such a scenario, it would seem prudent for the lawyer to advise the client about the lawyer’s ethical responsibility of candor toward the tribunal and to counsel the client against trying to present false evidence. It also seems prudent that the lawyer should talk to his client about the merits of pleading guilty – especially if he has decided not to present evidence on his client’s behalf.

One concern for giving moral advice in this context might be that, in so doing, the lawyer might erode the trust between the attorney and his or her client. I acknowledge that this point is potentially valid. However, it has been my experience that when I offer moral advice to my clients, they generally realize that I care about them as human beings and am trying to help them. Giving moral advice actually has strengthened the bond between me and my clients, for the most part. Indeed, I have never experienced a protracted erosion of trust based upon my giving moral advice to a client.

Additionally, as Comments 10 and 11 to Rule 3.3 state, even though a client may feel a sense of betrayal (in the context of remedying a client’s perjury or presentation of false evidence), the higher value at issue is to prevent the client from deceiving the court by using the lawyer as a stooge. Indeed, the comments require the lawyer to counsel with the client about the perjury or false evidence and persuade him or her to withdraw the evidence in confidence. It would seem that this hierarchy of values would also apply prior to a client’s actual perjury or presentation of false evidence as well; i.e., when the lawyer suspects that the client is lying about the facts of the case. Nevertheless, the ethical rules provide no specific guidance on this point.

Still another argument that I have heard by some defense lawyers regarding effective preparation for trial is that, if the attorney knew that the client was actually guilty, the attorney would have a hard time persuading the trier of fact that the client is not guilty. Consequently, some attorneys do not want to know the truth about the clients’ cases and either intentionally avoid carefully scrutinizing the clients’ statements or ask the clients not to provide statements. But this approach seems to only give lip service to Rule 3.3. By giving frank moral advice to a lying client, the attorney would address head-on the issue of fraud upon the court. And in regard to the attorney’s need to be persuasive at trial, the attorney’s job is only to attack the prosecutor’s burden of proof as an intellectual exercise under the Sixth Amendment, not to feel good about what he or she is doing. If an attorney cannot do so effectively because he or she suspects his client is guilty, then the lawyer should stop taking criminal cases or move to withdraw from the case.

It is interesting to note that both the National League of Cities and the D.C. Humanities Council have embraced giving moral advice to urban youth as a means to facilitate social change. Indeed, these organizations offer the Athenian Oath as something that youth should emulate. The Athenian Oath stated that the residents of Athens should “revere and obey the city’s laws,” and that they would “do [their] best to incite a like reverence and respect in those above them who are prone to annul [laws] or set them at nothing.” Thus, providing moral guidance to members of society as a means of instilling beneficial social values is an honored and ancient tradition – not the notion of an extremist.

In conclusion, it seems not only that providing moral advice to an accused is allowed by Rule 2.1, but that doing so would serve two important policies. The first would be facilitating a more honest approach to trial preparation under the proscriptions of Rule 3.3. The second would be helping our clients appreciate the moral ramifications of going to trial when they are in fact guilty. The latter consideration would make lawyers agents for beneficial social change as comprehensive advisors of the law. Neither policy would impact our clients’ rights to the effective assistance of counsel. Of course, we would also always have to balance giving moral advice with providing additional advice about the weakness of the prosecution’s case; e.g., if there was a solid shot at winning a suppression motion. And, of course, giving moral advice would become irrelevant when we believe our clients are innocent of the charges. However, by providing moral advice in this limited context, we would be providing our clients with precisely the kind of information that Rule 2.1 allows. Our clients need to intelligently decide how to proceed with their lives in light of their decision to commit a crime. For these reasons, I advocate advising our clients of the moral option to plead guilty when we suspect that they are in fact guilty, and when we believe that they are lying to us about the facts of their case. For the reasons stated, doing so will be in the best interests of our clients, the courts, and society.