MBE Rules · Professional Responsibility
Client Perjury
Cal. Rule 3.3 / People v. Johnson
The rule
A lawyer must first remonstrate and seek withdrawal; for a testifying criminal defendant California permits the narrative approach — the client testifies in narrative form and counsel does not argue the false testimony — protecting both candor and the right to testify.
In plain English
A lawyer has a duty to address client perjury by first advising the client against it and seeking to withdraw from representation if the client insists on lying. In California, a unique approach allows a criminal defendant to testify in a narrative form, where the lawyer does not challenge the truth of the testimony, thus balancing the client's right to testify with the need for honesty in court.
Worked example
A criminal defendant tells their lawyer they plan to lie on the stand about their whereabouts during the crime. The lawyer advises the client against this and seeks to withdraw from the case, but the client insists on testifying. The lawyer allows the client to give their testimony in narrative form without interjecting, leading to a situation where the jury hears the client's version without direct contradiction from the lawyer.
Memory hook
Remonstrate, withdraw, or let them narrate!
The trap
Exams may present scenarios where students overlook the requirement to remonstrate before withdrawal, leading to incorrect conclusions about the lawyer's obligations. Additionally, students might confuse the narrative approach with outright acceptance of false testimony.
How examiners test it
Questions often involve a scenario where a client intends to commit perjury, testing the candidate's understanding of the lawyer's responsibilities and the nuances of the narrative approach in California.
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More Professional Responsibility rules
- Duty of Confidentiality · Cal. Bus. & Prof. Code § 6068(e); Rule 1.6
- Client Trust Account — IOLTA · Cal. Rules of Prof. Conduct 1.15
- Duty to Report Misconduct · Cal. Rules of Prof. Conduct 8.3
- Unconscionable Fees · Cal. Rule 1.5
- Fee Division Among Lawyers · Cal. Rule 1.5.1
- Compensation from Third Parties · Cal. Rule 1.8.6