伦理意见213

辩护靠谱的滚球平台告知法庭不利证据的义务

适用的代码

• 博士4 - 101 (B) (1)(保密或秘密.)
• DR 7-102(A)(4)明知使用虚假证据.)
• 博士7 - 102 (A) (5)(明知虚假事实陈述.)
• DR 7-102(B)(2)(非客户向审裁处披露欺诈.)

适用的规则

• 规则1.6(信息保密.)
• 规则3.(3)对法庭的坦诚.)

调查

This inquiry arises out of a post-trial ineffective assistance of counsel proceeding in the Superior Court. The inquirer argued in that proceeding that his predecessor’s representation of a criminal defendant was ineffective because predecessor counsel failed to secure enforceable process upon a witness (“Witness B”) whose testimony allegedly would have exculpated the defendant. Predecessor counsel had located another witness (“Witness A”) who advised him that she had heard Witness B confess to the crime in question. Predecessor counsel spoke to Witness B, who promised to be present for trial. 证人B收到了传票. 然而, 证人B是否收到了传票尚不清楚, 他没有出庭受审.

在支持靠谱的滚球平台请愿无效协助方面, the inquirer submitted an affidavit from Witness A that recounted the inculpatory statement Witness B allegedly made in her presence.¹ 请愿书认为, 在其他事物之外, that the failure to secure enforceable service of a subpoena upon Witness B was prejudicial to the client and rendered predecessor counsel’s assistance ineffective.

几个月后，法院考虑了这件事, 询问者找到了证人B, 他否认对证人A做过任何陈述. The inquirer asks whether he has an ethical obligation to inform the court that Witness B denies making the inculpatory statement.

讨论

对这一调查的考虑必须从DR 4-101开始, 保护客户的机密和秘密.” The information that the inquirer learned from his interview of Witness B—that Witness B denies making inculpatory statements to Witness A—comes within the definition of a “secret.DR 4-101(A)(秘密就是信息, 除了信心, 这是“在职业关系中获得的” . . . 其中的披露 . . . 会对客户不利吗.²“因此, 除非根据DR 4-101(C)准许披露该秘密,“询问者不得透露他从证人B那里得知的情况. 博士4 - 101 (B) (1).

The only provision of DR 4-101(C) that would appear relevant to this inquiry is subparagraph (2), which allows disclosure of confidences and secrets “when permitted under Disciplinary 规则 or required by law or court order.” Under this standard, the Committee concludes that the inquirer may not reveal his client’s secret.³

1. DR 7-102(A)(4)(明知使用虚假证据)

It is true that the inquirer now possesses information that conflicts with the sworn statement of Witness A, 询问者向法庭提交的陈述. 然而, inquirer states that he submitted Witness A’s statement to the court before he located and interviewed Witness B. 因此, 根据所呈现的事实, 似乎没有违反DR 7-102(A)(4), 因为靠谱的滚球平台事先知道任何虚假的因素是不存在的.

The simple existence of conflicting witness statements does not by itself rise to the level of “知识” that one such statement is false. 参见Butler v. 美国, 414 A.2d 844 at 850 (D.C. 应用程序. 1979)以及其中引用的案例. 无论如何, 当询问者向法庭出示证人A的宣誓书时, 他不知道证人B会作出相反的陈述. 因此，委员会不能得出这样的结论, 提交证人A的宣誓书, 询问者故意提交了一份虚假陈述.

2. 博士7 - 102 (A) (5)(明知虚假事实陈述)

同样，根据所提出的事实，调查者也没有 故意 在他的请愿书中对事实作虚假陈述, to the extent that he argued that Witness B would have exculpated the defendant had the witness been required to appear at trial. 博士7 - 102 (A) (5). 的元素 知识 of any falsity at the time the statement may have been made to the court is lacking.⁴

3. DR 7-102(B)(2)(非客户向审裁处披露欺诈行为)

最后, there is the question whether DR 7-102(B)(2) requires counsel to reveal to the court the conflict between the statements of Witness A and Witness B, on the grounds that Witness A’s statement amounts to a “fraud upon a tribunal” by a non-client. The Committee concludes that DR 7-102(B)(2) does not mandate disclosure under these facts.

The obligation to disclose non-client fraud is predicated upon a lawyer’s having received “information clearly establishing” the fraud. 参见美国申诉委员会.S. 地方法院, 847 F.二维57,62-63 (2d Cir. (将DR 7-102(B)解释为要求“对欺诈的实际了解”.”)委员会认为, 孤独, the conflicting statements described in the inquiry do not clearly establish that Witness A’s statement is false.

结论

Under the facts presented, the inquirer must preserve the confidences and secrets of his client. The inquirer therefore is not ethically obligated to disclose to the Court the information he learned from his interview of Witness B. 事实上，目前这种披露是被禁止的.⁵

然而, the inquirer must exercise care in any future dealings with the court in this matter. Given his present 知识 that Witness B denies making inculpatory statements to Witness A, the inquirer should insure that any future representations to the court regarding what Witness B’s testimony would have been do not run afoul of the inquirer’s ethical obligations. 参见In re austen, 524 A.2d 680 (D.C. 应用程序. 1987).

调查没有. 89-11-41
通过:1990年6月19日

1. 尽管证人A在刑事审判中作证, the inquirer advises that testimony regarding Witness B’s statement was not elicited, 因为证人A没有被“询问适当的问题”.“委员会对这一说法不发表意见.
2. 另见规则1的评论6.6 . D.C. 职业行为准则, which provides that the prohibition against disclosure of secrets “exists without regard to the nature or source of the information or the fact that others share the 知识.”
3. This opinion is limited to consideration of disclosures “permitted under Disciplinary 规则.” The inquiry makes no reference to a court order mandating disclosure of the secret, 因此，委员会假定不存在这样的命令. 见意见180. Whether the inquirer was or is “required by law” to disclose the information in question is a legal issue that is beyond the authority of the Committee to decide. Id. n.1.
4. 尽管如此, 如下所述, the inquirer must take care to avoid 故意 making false statements in the future. 5. The Committee concludes that the result reached in this opinion would be the same under the 职业行为准则 that will go into effect in the District of Columbia on January 1, 1991. 见规则1.6 .(信息保密).3(对法庭的坦诚).