Why your lawyer doesn't ask for your side of the story: An article about lawyer client privilege, exceptions, and your right to the best defense in a criminal case.

Posted By Atty. Michael Evans || 28-Apr-2013

A lawyer not asking for your side of the story in a criminal case is so counter-intuitive, so morally gut wrenching, that an article had to be written to attempt to explain it and (hopefully) avoid hurt feelings of the client as well as negative perception from the public eye.

Most people hire a lawyer so they can have someone protect them, fight for them, and most importantly…tell their “story”. Their story is that which they truly believe to be the most accurate, truthful version of events, and ultimately why they believe they should win the case. So why would a criminal defense lawyer be so disinterested in hearing a new client’s side of the story when first meeting them? Doesn’t he or she want to know why they are innocent?

The answer is yes, we do…but not right away. Criminal defense law carries a set of unique constitutional rights that set it apart from the civil practice of law. Criminal defense attorneys understand the importance of protecting these constitutional rights, and are all too aware of the consequences for not doing so. Unlike civil cases, criminal cases carry the threat of punishment – which could include years of prison away from employment, home, wives, and children. Therefore, the stakes are always higher in a criminal case than a civil case, which means that the criminal defense lawyer carries the great burden of doing the best job possible for you in every criminal case. Doing the best job possible sometimes means saving you from…yourself. A criminal defense attorney must not only protect your constitutional rights, but prevent you from eliminating them, even on the first day you meet them.

The most commonly understood (and most important) right is that you cannot to be compelled to incriminate yourself with your own statements. This is commonly known as the Fifth Amendment Right. Many times you will hear lawyers advise their clients not to make any statements to anyone, including the police, no matter how much they think it will help their case. We do this not because we don’t think you are telling the truth, but because you do not yet have a full understanding of criminal law, the consequences, nor the strategies and techniques used by law enforcement to obtain statements (which frequently get used out of context and then used against you in court).

But let’s talk about the situation where the client is guilty of the crime charged, and wants to divulge that information to us, the prosecutor, or to the police. (Not all of the people we represent are innocent). Every criminal defense lawyer will advise against making any statements that will incriminate you - not because we truly desire bad people walking around the streets committing crimes and not getting caught - but because once you have hired us, it is our job to protect your constitutional rights. Let me say that again…it is our job to protect your constitutional rights. In that respect, we operate more or less in a vacuum. It is not about guilt or innocence for us, rather, what can I do to make sure someone receives a fair trial.

Frequently we are asked, “How can you represent those people?” or “How can you represent someone you know is guilty?” Fortunately there is a very simple answer to those questions. Although we frequently represent some really bad people, our function is never act as the prosecutor, judge, or jury.

Again, our sole responsibility as criminal defense attorneys is to provide you with the best representation possible, which means challenging the evidence, presenting defenses, and preventing anyone (including you) from violating your rights. If we were ever to abandon our function in the criminal justice system, then we would be cheating not only the client, but the judge and jury out of deciding a fair trial. A trial is only fair if both sides are equally and adequately represented. Criminal defense attorneys never make the ultimate decisions on guilt or innocence - that is reserved for the jury or the judge. A jury or a judge could not be sure of such an important decision (guilt or innocence) if there is no one on the other side challenging the case. Regardless of our personal opinions, (and yes we have them), we must always do the best job we can for the client because anything less would be to usurp the role of the judge and the jury.

So let’s get back to the first meeting where you want to tell your lawyer everything that happened. A good criminal defense attorney will not allow you to make any such statement so quickly. First, you must understand the limitations of the attorney-client privilege. Although this privilege is the highest, most protected privilege in the whole world, it does not come without exceptions. One of those exceptions is that a lawyer must never knowingly support perjury (being untruthful) in a courtroom. To do so violates several ethical rules and the lawyer may face disbarment. So how does this apply to your case?

At the first meeting with your criminal defense attorney, you have little to no information about what exactly will be in the police reports, or “discovery”. During the investigation of your case, the police wrote reports on what they think you did wrong. These reports may include statements from witnesses, dates, times, and locations. Although you may convinced you know what happened because you were there (or maybe you have no idea because you were somewhere else), it makes little sense for you to be forced to tell your “side” of the story because you have not had the benefit of reading what the police say first. You may be surprised what you read.

Since your lawyer can never knowingly support perjury, telling your lawyer “your side” of the story without knowing the police side of the story borders on recklessness. You don’t want to make mistakes or leave things out. Additionally, you don’t want to say things that are completely inconsistent or don’t make sense. Most importantly, you don’t want to say things that you cannot later retract.

Before you say a single word, it is the job of your criminal defense attorney to go over the discovery with you and advise you on what he or she thinks in the best defense. Your attorney will talk about the good facts, and the bad facts. He or she will give you an opinion as to how a judge or a jury might perceive those facts. Your attorney will discuss with you possible defenses, as well as the risks and benefits of going to trial. Then, and only then, will your attorney ask you if you still want to tell your side of the story. At this point, you will know what the police say, what your attorney thinks, and be able to make an intelligent decision on whether to say anything at all. You are entitled to the best defense, not the only defense. Telling your side of the story may eliminate what that best defense is.

An example I frequently give to clients who don’t understand this concept is to have them pretend they were charged with murder. You come into my office and the first thing you say is “I didn’t mean to kill him.” At this point, I now know that you killed someone, but you didn’t mean it. Of course, as your attorney, the attorney-client privilege protects that statement from being disclosed to anyone. A few weeks later, we get the police reports, and the eye witness accounts describe someone very different from you. The fingerprints on the gun don’t even match you. All of the evidence points to someone else as being the murderer. Normally, I would have advised you that the best defense in your case, considering the evidence, is “alternate suspect”. Unfortunately, by your own statement at our first meeting a few weeks prior, I likely cannot use that defense because you already told me that you did kill someone, you just didn’t mean it. You have likely eliminated the best defense from your case, and pigeon-holed yourself into the only defense, lack of intent. How? Well, assume that we were to go to trial, and you wanted to testify that you were not at the scene (which given the evidence would have been a possibility). As your attorney, I cannot continue my representation of you in this case because I would be knowingly allowing you to testify under oath to something different than what you originally admitted to me. This is perjury. I would be forced to request withdrawal from your case. See Nix v. Whiteside, 106 S. Ct. 988 (1986); People v. Blye, 233 Cal. App. 2d 143, 43 Cal. Rptr. 231 (1965);People v. Schultheis, 638 P.2d 8 (Colo. 1981). See also C.R.P.C.3.3; 1.6; 1.16. I could not ever divulge the specific reason for the withdrawal, nor the content of what you told me. (This is how strong the attorney-client privilege is.) After my withdrawal, you would have to hire a new attorney. If you desired to use the “alternate suspect” defense with this new attorney, you could, so long as you do not make the same statements. Assuming you did not admit to accidentally killing someone, there would be no ethical conflict for this attorney to use the “alternate suspect” defense and allow you to testify since he or she would not knowingly be supporting perjury.

For further information or questions, please contact The Evans Firm.


RULE 3.3. CANDOR TOWARD THE TRIBUNAL

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule
1.6.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.


RULE 1.6. CONFIDENTIALITY OF INFORMATION

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to reveal the client’s intention to commit a crime and the information necessary to prevent
the crime;

(3) to prevent the client from committing a fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;

(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;

(5) to secure legal advice about the lawyer's compliance with these Rules, other law or a court order;

(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(7) to comply with other law or a court order.


RULE 1.16. DECLINING OR TERMINATING REPRESENTATION

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the Rules of Professional Conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.
(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the
client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.


NIX, WARDEN v. WHITESIDE No. 84-1321 SUPREME COURT OF THE UNITED STATES 475 U.S. 157; 106 S. Ct. 988; 89 L. Ed. 2d 123; 1986 U.S. LEXIS 8; 54 U.S.L.W. 4194 November 5, 1985, Argued February 26, 1986, Decided

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT. DISPOSITION: 744 F.2d 1323, reversed.

DECISION: Sixth Amendment right to assistance of counsel held not violated by attorney's refusal to co-operate with accused in presenting perjured testimony at trial.

SUMMARY: The accused, who was charged with murder, repeatedly told his attorney that although he had not actually seen a gun in the victim's hand when he stabbed the victim, he was convinced that the victim had a gun. No gun was found on the premises where the victim was stabbed, and the accused's companions who were present during the stabbing told the accused's attorney that they had seen no gun. Shortly before trial, the accused told the attorney for the first time that he had actually seen "something metallic" in the victim's hand, and that "if I don't say I saw a gun, I'm dead." The attorney advised the accused that the claim of self- defense could be based on the accused's reasonable belief that the victim had a gun; that it was not necessary to prove that the victim actually had a gun; that the attorney would not allow the accused to commit perjury; that the attorney would probably impeach the accused's testimony that the victim actually had a gun; and that the attorney would seek to withdraw from representing the accused if the accused insisted on committing perjury. At the accused's jury trial, in an Iowa state court, the accused testified that he believed that the victim had a gun, but he admitted that he had not actually seen a gun. After the jury returned a verdict of second- degree murder, the accused moved for a new trial on the ground that he had been deprived of a fair trial by the attorney's admonitions not to state that he saw a gun or "something metallic." The accused's motion for a new trial was denied, and the Supreme Court of Iowa affirmed the accused's conviction, holding that the attorney had properly refused to help the accused commit perjury (272 NW2d 468). The accused then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa, and the District Court, denying the writ, held that there could be no ground for habeas corpus relief because there was no constitutional right to present a perjured defense. Reversing the District Court's decision and directing that the writ of habeas corpus be granted, the United States Court of Appeals for the Eighth Circuit held (1) that the attorney's threat to withdraw and to inform the court of the accused's perjury had impermissibly compromised the accused's Sixth Amendment right to effective assistance of counsel, and (2) that the attorney's conduct was presumptively prejudicial to the accused's defense (744 F2d 1323). The Court of Appeals denied a motion for rehearing en banc (750 F2d 713). On certiorari, the United States Supreme Court reversed. In an opinion by Burger, Ch. J., joined by White, Powell, Rehnquist, and O'Connor, JJ., it was held that the accused's Sixth Amendment right to assistance of counsel was not violated by his attorney's refusal to cooperate with him in presenting perjured testimony at his trial, since (1) the attorney treated the accused's proposed perjury in accord with professional standards, and (2) the accused's truthful testimony could not have prejudiced the result of his trial. Brennan, J., concurring in the judgment, expressed the view that the accused had failed to prove the kind of prejudice necessary to make out a claim for federal habeas corpus relief based on denial of the Sixth Amendment right to effective assistance of counsel, but that the court's essay regarding what constitutes the correct response to a criminal client's suggestion that he will perjure himself was pure discourse without force of law. Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., concurring in the judgment, expressed the view that the accused had suffered no injury justifying federal habeas corpus relief, since the accused was deprived of neither a fair trial nor any of the specific constitutional rights designed to guarantee a fair trial, but that it was unnecessary for the court to discuss standards of professional responsibility for attorneys in state criminal proceedings. Stevens, J., concurring in the judgment, expressed the view that the accused had suffered no legally cognizable prejudice, but that it was unnecessary for the court to attempt to resolve areas of uncertainty as to the nature of a lawyer's responsibilities to his client.

JUDGES: BURGER, C. J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 176. BLACKMUN, J., filed an BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 177. STEVENS, J., filed an opinion concurring in the judgment, post, p. 190. OPINION BY: BURGER OPINION [*159] [***130] [**990] CHIEF JUSTICE BURGER delivered the opinion of the Court. [***LEdHR1A] [1A]

We granted certiorari to decide whether the Sixth Amendment right of a criminal defendant to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony at his trial. 1 1 Although courts universally condemn an attorney's assisting in presenting perjury, Courts of Appeals have taken varying approaches on how to deal with a client's insistence on presenting perjured testimony. The Seventh Circuit, for example, has held that an attorney's refusal to call the defendant as a witness did not render the conviction constitutionally infirm where the refusal to call the defendant was based on the attorney's belief that the defendant would commit perjury. United States v. Curtis, 742 F.2d 1070 (1984). The Third Circuit found a violation of the Sixth Amendment where the attorney could not state any basis for her belief that defendant's proposed alibi testimony was perjured. United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (1977). See also Lowery v. Cardwell, 575 F.2d 727 (CA9 1978) (withdrawal request in the middle of a bench trial, immediately following [*160] I A Whiteside was convicted of second-degree murder by a jury verdict which was affirmed by the Iowa courts. The killing took place on February 8, 1977, in Cedar Rapids, Iowa. Whiteside and two others went to one Calvin Love's apartment late that night, seeking marihuana. Love was [**991] in bed when Whiteside and his companions arrived; an argument between Whiteside and Love over the marihuana ensued. At one point, Love directed his girlfriend to get his "piece," and at another point got up, then returned to his bed. According to Whiteside's testimony, Love then started to reach under his pillow and moved toward Whiteside. Whiteside stabbed Love in the chest, inflicting a fatal wound. Whiteside was charged with murder, and when counsel was appointed he objected to the lawyer initially appointed, claiming that he felt uncomfortable with a lawyer who had formerly been a prosecutor. Gary L. Robinson was then appointed and immediately began an investigation. Whiteside gave him a statement that he had stabbed Love as the latter "was pulling a pistol from underneath the pillow on the bed." Upon questioning by Robinson, however, Whiteside indicated that he had not actually seen a gun, but that he was convinced that Love had a gun. No pistol was found on the premises; shortly after the police search following the stabbing, which had revealed no weapon, the victim's family had removed all of the victim's [***131] possessions from the apartment. Robinson interviewed Whiteside's companions who were present during the stabbing, and none had seen a gun during the incident. Robinson advised Whiteside that the existence of a gun was not necessary to establish the claim of self-defense, and that only a reasonable belief that the victim had a gun nearby was Until shortly before trial, Whiteside consistently stated to Robinson that he had not actually seen a gun, but that he was [*161] convinced that Love had a gun in his hand. About a week before trial, during preparation for direct examination, Whiteside for the first time told Robinson and his associate Donna Paulsen that he had seen something "metallic" in Love's hand. When asked about this, Whiteside responded: "[In] Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead." Robinson told Whiteside that such testimony would be perjury and repeated that it was not necessary to prove that a gun was available but only that Whiteside reasonably believed that he was in danger. On Whiteside's insisting that he would testify that he saw "something metallic" Robinson told him, according to Robinson's testimony: "[We] could not allow him to [testify falsely] because that would be perjury, and as officers of the court we would be suborning perjury if we allowed him to do it; . . . I advised him that if he did do that it would be my duty to advise the Court of what he was doing and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony." App. to Pet. for Cert. A-85. Robinson also indicated he would seek to withdraw from the representation if Whiteside insisted on committing perjury. 2 2 Whiteside's version of the events at this pretrial meeting is considerably more cryptic: "Q. And as you went over the questions, did the two of you come into conflict with regard to whether or not there was a weapon? "A. I couldn't -- I couldn't say a conflict. But I got the impression at one time that maybe if I didn't go along with -- with what was happening, that it was no gun being involved, maybe that he will pull out of my trial." App. to Pet. for Cert. A-70. Whiteside testified in his own defense at trial and stated that he "knew" that Love had a gun and that he believed Love was reaching for a gun and he had acted swiftly in self-defense. On cross- examination, he admitted that he had not [*162] actually seen a gun in Love's hand. Robinson presented evidence that Love had been seen with a sawed-off shotgun on other occasions, that the police search of the apartment may have been careless, and that the victim's family had removed everything from the apartment shortly after the crime. Robinson presented this evidence to show a basis [**992] for Whiteside's asserted fear that Love had a gun. The jury returned a verdict of second-degree murder, and Whiteside moved for a new trial, claiming that he had been deprived of a fair trial by Robinson's admonitions not to state that he saw a gun or "something metallic." The trial court held a hearing, heard testimony by Whiteside and Robinson, and denied the motion. The trial court made [***132] specific findings that the facts were as related by Robinson. The Supreme Court of Iowa affirmed respondent's conviction. State v. Whiteside, 272 N. W. 2d 468 (1978). That court held that the right to have counsel present all appropriate defenses does not extend to using perjury, and that an attorney's duty to a client does not extend to assisting a client in committing perjury. Relying on DR 7-102(A)(4) of the Iowa Code of Professional Responsibility for Lawyers, which expressly prohibits an attorney from using perjured testimony, and Iowa Code § 721.2 (now Iowa Code § 720.3 (1985)), which criminalizes subornation of perjury, the Iowa court permissible, but were required. The court commended "both Mr. Robinson and Ms. Paulsen for the high ethical manner in which this matter was handled." B Whiteside then petitioned for a writ of habeas corpus in the United States District Court for the Southern District of Iowa. In that petition Whiteside alleged that he had been denied effective assistance of counsel and of his right to present a defense by Robinson's refusal to allow him to testify as he had proposed. The District Court denied the writ. Accepting the state trial court's factual finding that [*163] Whiteside's intended testimony would have been perjurious, it concluded that there could be no grounds for habeas relief since there is no constitutional right to present a perjured defense. The United States Court of Appeals for the Eighth Circuit reversed and directed that the writ of habeas corpus be granted. Whiteside v. Scurr, 744 F.2d 1323 (1984). The Court of Appeals accepted the findings of the trial judge, affirmed by the Iowa Supreme Court, that trial counsel believed with good cause that Whiteside would testify falsely and acknowledged that under Harris v. New York, 401 U.S. 222 (1971), a criminal defendant's privilege to testify in his own behalf does not include a right to commit perjury. Nevertheless, the court reasoned that an intent to commit perjury, communicated to counsel, does not alter a defendant's right to effective assistance of counsel and that Robinson's admonition to Whiteside that he would inform the court of Whiteside's perjury constituted a threat to violate the attorney's duty to preserve client confidences. 3 According to the Court of Appeals, this threatened violation of client confidences breached the standards of effective representation set down in Strickland v. Washington, 466 U.S. 668 (1984). The court also concluded that Strickland's prejudice requirement was satisfied by an implication of prejudice from the conflict between Robinson's duty of loyalty to his client and his ethical duties. A petition for rehearing en banc was denied, with Judges Gibson, Ross, Fagg, and Bowman dissenting. Whiteside [***133] v. Scurr, 750 F.2d 713 (1984). We granted certiorari, 471 U.S. 1014 (1985), and we reverse. 3 The Court of Appeals agreed with the District Court's finding that respondent properly exhausted his claims in state court. Although respondent had pressed his claim before the Supreme Court of Iowa as a denial of his due process right to a fair trial, and not as a denial of his Sixth Amendment right to counsel, the Court of Appeals accepted the District Court's conclusion that the Sixth Amendment claim was exhausted, since further proceedings would be futile. [*164] II A The right of an accused to testify in his defense is of relatively recent origin. Until [**993] the latter part of the preceding century, criminal defendants in this country, as at common law, were considered to be disqualified from giving sworn testimony at their own trial by reason of their interest as a party to the case. See, e. g., Ferguson v. Georgia, 365 U.S. 570 (1961); R. Morris, Studies in the History of American Law 59-60 (2d ed. 1959). Iowa was among the states that adhered to this rule of disqualification. State v. Laffer, 38 Iowa 422 (1874). By the end of the 19th century, however, the disqualification was finally abolished by statute in most states and in the federal courts. Act of Mar. 16, 1878, ch. 37, 20 Stat. 30-31; see Thayer, A Chapter of Legal History in Massachusetts, 9 Harv. L. Rev. 1, 12 (1895). Although this Court has never explicitly held that a criminal defendant has a due process right to testify in his own behalf, cases in several Circuits have so held, and the right has long been assumed. See, e. g., United States v. Curtis, 742 F.2d. 1070, 1076 (CA7 1984); United States v. Bifield, 702 F.2d 342, 349 (CA2), cert. denied, 461 U.S. 931 (1983). We have also suggested that such a right exists as a corollary to the Fifth Amendment privilege against compelled testimony, see Harris v. New York, supra, at 225. See also Ferguson, 365 U.S., at 598-601 (concurring opinion of Frankfurter, J.); id., at 601-603 (concurring opinion of Clark, J.). B [***LEdHR2] [2]In Strickland v. Washington, we held that to obtain relief by way of federal habeas corpus on a claim of a deprivation of effective assistance of counsel under the Sixth Amendment, the movant must establish both serious attorney error and prejudice. To show such error, it must be established that the assistance rendered by counsel was constitutionally deficient [*165] in that "counsel made errors so serious that counsel was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S., at 687. To show prejudice, it must be established that the claimed lapses in counsel's performance rendered the trial unfair so as to "undermine confidence in the outcome" of the trial. Id., at 694. [***LEdHR3] [3]In Strickland , we acknowledged that the Sixth Amendment does not require any particular response by counsel to a problem that may arise. Rather, the Sixth Amendment inquiry is into whether the attorney's conduct was "reasonably effective." To counteract the natural tendency to fault an unsuccessful defense, a court reviewing a claim of ineffective assistance must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689. In giving shape to the perimeters of this range of reasonable [***134] professional assistance, Strickland mandates that "[prevailing] norms of practice as reflected in American Bar Association Standards and the like, . . . are guides to determining what is reasonable, but they are only guides." Id., at 688. [***LEdHR4] [4] [***LEdHR5] [5]Under the Strickland standard, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel. When examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts. In some future case challenging attorney conduct in the course of a state-court trial, we may need to define with greater precision the weight to be given to recognized canons of ethics, the standards established by the state in statutes or professional codes, and the Sixth Amendment, [*166] in defining the proper [**994] scope and limits on that conduct. Here we need not face that question, since virtually all of the sources speak with one voice. C We turn next to the question presented: the definition of the range of "reasonable professional" responses to a criminal defendant client who informs counsel that he will perjure himself on the stand. We must determine whether, in this setting, Robinson's conduct fell within the wide range of professional responses to threatened client perjury acceptable under the Sixth Amendment. [***LEdHR6] [6]In Strickland, we recognized counsel's duty of loyalty and his "overarching duty to advocate the defendant's cause." Ibid. Plainly, that duty is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth. Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908. The 1908 Canon 32 provided: "No client, corporate or individual, however powerful, nor any cause, civil or political, however important, is entitled to receive nor should any lawyer render any service or advice involving disloyalty to the law whose ministers we are, or disrespect of the judicial office, which we are bound to uphold, or corruption of any person or persons exercising a public office or private trust, or deception or betrayal of the public. . . . He must . . . observe and advise his client to observe the statute law . . . ." [*167] Of course, this Canon did no more than articulate centuries of accepted standards of conduct. Similarly, Canon 37, adopted in 1928, explicitly acknowledges as an exception to the [***135] attorney's duty of confidentiality a client's announced intention to commit a crime: "The announced intention of a client to commit a crime is not included within the confidences which [the attorney] is bound to respect." These principles have been carried through to contemporary codifications 4 of an attorney's professional responsibility. Disciplinary Rule 7- 102 of the Model Code of Professional Responsibility (1980), entitled "Representing a Client Within the Bounds of the Law," provides: "(A) In his representation of a client, a lawyer shall not: . . . . "(4) Knowingly use perjured testimony or false evidence. . . . . "(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." [*168] This provision has been adopted by Iowa, and is binding on all lawyers who appear in its courts. See Iowa Code of Professional Responsibility for Lawyers (1985). The more recent Model Rules of [**995] Professional Conduct (1983) similarly admonish attorneys to obey all laws in the course of representing a client: "RULE 1.2 Scope of Representation . . . . "(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . ." Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct also adopt the specific exception from the attorney-client privilege for disclosure of perjury that his client intends to commit or has committed. DR 4-101(C)(3) (intention of client to commit a crime); Rule 3.3 (lawyer has duty to disclose falsity of evidence even if disclosure compromises client confidences). Indeed, both the Model Code and the Model Rules do not merely authorize disclosure by counsel of client perjury; they require such disclosure. See Rule 3.3(a)(4); DR 7-102(B)(1); Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Crary, 245 N. W. 2d 298 (Iowa 1976). 4 There currently exist two different codifications of uniform standards of professional conduct. The Model Code of Professional Responsibility was originally adopted by the American Bar Association in 1969, and was subsequently adopted (in many cases with modification) by nearly every state. The more recent Model Rules of Professional Conduct were adopted by the American Bar Association in 1983. Since their promulgation by the American Bar Association, the Model Rules have been adopted by 11 States: Arizona, Arkansas, Delaware, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, North Carolina, and Washington. See 1 ABA/BNA Lawyers' Manual on Professional Conduct 334 (1984-1985) (New Jersey); id., at 445 (Arizona); id., at 855 (Montana, Minnesota); id., at 924 (Missouri); id., at 961 (Delaware, Washington); id., at 1026 (North Carolina); id., at 1127 (Arkansas); 2 id., at 14 (1986) (New Hampshire, Nevada). Iowa is one of the States that adopted a form of the Model Code of Professional Responsibility, but has yet to adopt the Model Rules. See Iowa Code of Professional Responsibility for Lawyers (1985). [***LEdHR7] [7]These standards confirm that the legal profession has accepted that an attorney's ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards [***136] of professional conduct; it specifically ensures that the client may not use false evidence. 5 This special duty of an attorney to prevent and disclose [*169] frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice. See 1 W. Burdick, Law of Crime §§ 293, 300, 318-336 (1946). 5 The brief of amicus American Bar Association, which supports petitioner, makes this point, referring to the history of codes of professional conduct which it has promulgated. The preamble to the most current version of the ethical standards recognizes the difficult choices that may confront an attorney who is sensitive to his concurrent duties to his client and to the legal system: "Within the framework of these Rules many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules." Preamble, Model Rules of Professional Conduct, p. 10 (1983). The offense of perjury was a crime recognized at common law, id., at p. 475, and has been made a felony in most states by statute, including Iowa. Iowa Code § 720.2 (1985). See generally 4 C. Torcia, Wharton's Criminal Law § 631 (14th ed. 1981). An attorney who aids false testimony by questioning a witness when perjurious responses can be anticipated risks prosecution for subornation of perjury under Iowa Code § 720.3 (1985). [***LEdHR8] [8]It is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct. Model Rules of Professional Conduct, Rule 3.3, Comment; Wolfram, Client Perjury, 50 S. Cal. L. Rev. 809, 846 (1977).A statement directly in point is found in the commentary to the Model Rules of Professional Conduct under the heading "False Evidence": "When false evidence is offered by the client, however, a conflict may arise between the lawyer's duty to keep the client's revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed." Model Rules of Professional Conduct, Rule 3.3, Comment (1983) (emphasis added). [*170] The commentary thus also suggests that an attorney's revelation of his client's perjury to the court is a professionally responsible and acceptable response to the conduct of a client who has actually given perjured testimony. Similarly, the Model Rules and the commentary, as well as the Code of Professional Responsibility [**996] adopted in Iowa, expressly permit withdrawal from representation as an appropriate response of an attorney when the client threatens to commit perjury. Model Rules of Professional Conduct, Rule 1.16(a)(1), Rule 1.6, Comment (1983); Code of Professional Responsibility, DR 2-110(B), (C) (1980). Withdrawal of counsel when this situation arises at trial gives rise to many difficult questions including possible mistrial and claims of double jeopardy. 6 6 In the evolution of the contemporary standards promulgated by the American Bar Association, an early draft reflects a compromise suggesting that when the disclosure of intended perjury is made during the course of trial, when withdrawal of counsel would raise difficult questions of a mistrial holding, counsel had the option to let the defendant take the stand but decline to affirmatively assist the presentation of perjury by traditional direct examination. Instead, counsel would stand mute while the defendant undertook to present the false version in narrative form in his own words unaided by any direct examination. This conduct was thought to be a signal at least to the presiding judge that the attorney considered the testimony to be false and was seeking to disassociate himself from that course. Additionally, counsel would not be permitted to discuss the known false testimony in closing arguments. See ABA Standards for Criminal Justice, Proposed Standard 4-7.7 (2d ed. 1980). Most courts treating the subject rejected this approach and insisted on a more rigorous standard, see, e. g., United States v. Curtis, 742 F.2d 1070 (CA7 1984); McKissick v. United States, 379 F.2d 754 (CA5 1967); Dodd v. Florida Bar, 118 So. 2d 17, 19 (Fla. 1960). The Eighth Circuit in this case and the Ninth Circuit have expressed approval of the "free narrative" standards. Whiteside v. Scurr, 744 F.2d 1323, 1331 (CA8 1984); Lowery v. Cardwell, 575 F.2d 727 (CA9 1978). The Rule finally promulgated in the current Model Rules of Professional Conduct rejects any participation or passive role whatever by counsel in allowing perjury to be presented without challenge. [***LEdHR9] [9]The [***137] essence of the brief amicus of the American Bar Association reviewing practices long accepted by ethical lawyers [*171] is that under no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony. This, of course, is consistent with the governance of trial conduct in what we have long called "a search for truth." The suggestion sometimes made that "a lawyer must believe his client, not judge him" in no sense means a lawyer can honorably be a party to or in any way give aid to presenting known perjury. D [***LEdHR10A] [10A]Considering Robinson's representation of respondent in light of these accepted norms of professional conduct, we discern no failure to adhere to reasonable professional standards that would in any sense make out a deprivation of the Sixth Amendment right to counsel. Whether Robinson's conduct is seen as a successful attempt to dissuade his client from committing the crime of perjury, or whether seen as a "threat" to withdraw from representation and disclose the illegal scheme, Robinson's representation of Whiteside falls well within accepted standards of professional conduct and the range of reasonable professional conduct acceptable under Strickland. The Court of Appeals assumed for the purpose of the decision that Whiteside would have given false testimony had counsel not intervened; its opinion denying a rehearing en banc states: "[We] presume that appellant would have testified falsely. . . . . ". . . Counsel's actions prevented [Whiteside] from testifying falsely. We hold that counsel's action deprived appellant of due process and effective assistance of counsel. . . . . "Counsel's actions also impermissibly compromised appellant's right to testify in his own defense by conditioning continued representation by counsel and confidentiality [*172] upon appellant's restricted testimony." 750 F.2d., at 714- 715. While purporting to follow Iowa's highest court "on all questions of state law," 744 F.2d., at 1330, the Court of Appeals reached its [***138] conclusions on the basis of federal [**997] constitutional due process and right to counsel. The Court of Appeals' holding that Robinson's "action deprived [Whiteside] of due process and effective assistance of counsel" is not supported by the record since Robinson's action, at most, deprived Whiteside of his contemplated perjury. Nothing counsel did in any way undermined Whiteside's claim that he believed the victim was reaching for a gun. Similarly, the record gives no support for holding that Robinson's action "also impermissibly compromised [Whiteside's] right to testify in his own defense by conditioning continued representation . . . and confidentiality upon [Whiteside's] restricted testimony." The record in fact shows the contrary: (a) that Whiteside did testify, and (b) he was "restricted" or restrained only from testifying falsely and was aided by Robinson in developing the basis for the fear that Love was reaching for a gun. Robinson divulged no client communications until he was compelled to do so in response to Whiteside's post-trial challenge to the quality of his performance. We see this as a case in which the attorney successfully dissuaded the client from committing the crime of perjury. Paradoxically, even while accepting the conclusion of the Iowa trial court that Whiteside's proposed testimony would have been a criminal act, the Court of Appeals held that Robinson's efforts to persuade Whiteside not to commit that crime were improper, first, as forcing an impermissible choice between the right to counsel and the right to testify; and, second, as compromising client confidences because of Robinson's threat to disclose the contemplated perjury. 7 7 The Court of Appeals also determined that Robinson's efforts to persuade Whiteside to testify truthfully constituted an impermissible threat to testify against his own client. We find no support for a threat to testify against Whiteside while he was acting as counsel. The record reflects testimony by Robinson that he had admonished Whiteside that if he withdrew he "probably would be allowed to attempt to impeach that particular testimony," if Whiteside testified falsely. The trial court accepted this version of the conversation as true. [*173] [***LEdHR11] [11] [***LEdHR12] [12]Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely. In Harris v. New York, we assumed the right of an accused to testify "in his own defense, or to refuse to do so" and went on to hold: "[That] privilege cannot be construed to include the right to commit perjury. See United States v. Knox, 396 U.S. 77 (1969); cf. Dennis v. United States, 384 U.S. 855 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully . . . ." 401 U.S., at 225. In Harris we held the defendant could be impeached by prior contrary statements which had been ruled inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966). Harris and other cases make it crystal clear that there is no right whatever -- constitutional [***139] or otherwise -- for a defendant to use false evidence. See also United States v. Havens, 446 U.S. 620, 626-627 (1980). [***LEdHR13] [13]The paucity of authority on the subject of any such "right" may be explained by the fact that such a notion has never been responsibly advanced; the right to counsel includes no right to have a lawyer who will cooperate with planned perjury. A lawyer who would so cooperate would be at risk of prosecution for suborning perjury, and disciplinary proceedings, including suspension or disbarment. [***LEdHR14] [14]Robinson's admonitions to his client can in no sense be said to have forced respondent into an impermissible choice between his right to counsel and his right to testify as he proposed for there was no permissible choice to testify falsely. For defense counsel to take steps to persuade a criminal defendant to testify truthfully, or to withdraw, deprives the defendant of neither his right to counsel nor the right to [*174] testify [**998] truthfully. In United States v. Havens, supra, we made clear that "when defendants testify, they must testify truthfully or suffer the consequences." Id., at 626.When an accused proposes to resort to perjury or to produce false evidence, one consequence is the risk of withdrawal of counsel. [***LEdHR15] [15]On this record, the accused enjoyed continued representation within the bounds of reasonable professional conduct and did in fact exercise his right to testify; at most he was denied the right to have the assistance of counsel in the presentation of false testimony. Similarly, we can discern no breach of professional duty in Robinson's admonition to respondent that he would disclose respondent's perjury to the court. The crime of perjury in this setting is indistinguishable in substance from the crime of threatening or tampering with a witness or a juror. A defendant who informed his counsel that he was arranging to bribe or threaten witnesses or members of the jury would have no "right" to insist on counsel's assistance or silence. Counsel would not be limited to advising against that conduct. An attorney's duty of confidentiality, which totally covers the client's admission of guilt, does not extend to a client's announced plans to engage in future criminal conduct. See Clark v. United States, 289 U.S. 1, 15 (1933). In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard. [***LEdHR10B] [10B]The rule adopted by the Court of Appeals, which seemingly would require an attorney to remain silent while his client committed perjury, is wholly incompatible with the established standards of ethical conduct and the laws of Iowa and contrary to professional standards promulgated by that State. The position advocated by petitioner, on the contrary, [*175] is wholly consistent with the Iowa standards of professional conduct and law, with the overwhelming [***140] majority of courts, 8 and with codes of professional ethics. Since there has been no breach of any recognized professional duty, it follows that there can be no deprivation of the right to assistance of counsel under the Strickland standard. 8 See United States v. Curtis, 742 F.2d 1070 (CA7 1984); Committee on Professional Ethics v. Crary, 245 N. W. 2d 298 (Iowa 1976); State v. Robinson, 290 N. C. 56, 224 S. E. 2d 174 (1976); Thornton v. United States, 357 A. 2d 429 (D. C. 1976); State v. Henderson, 205 Kan. 231, 468 P. 2d 136 (1970); McKissick v. United States, 379 F.2d 754 (CA5 1967); In re King, 7 Utah 2d 258, 322 P. 2d 1095 (1958); In re Carroll, 244 S. W. 2d 474 (Ky. 1951); Hinds v. State Bar, 19 Cal. 2d 87, 119 P. 2d 134 (1941). Contra, Whiteside v. Scurr, 744 F.2d 1323 (CA8 1984) (case below); Lowery v. Cardwell, 575 F.2d 727 (CA9 1978). E [***LEdHR16A] [16A] [***LEdHR17] [17]We hold that, as a matter of law, counsel's conduct complained of here cannot establish the prejudice required for relief under the second strand of the Strickland inquiry. Although a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S., at 694. According to Strickland, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. The Strickland Court noted that the "benchmark" of an ineffective-assistance claim is the fairness of the adversary proceeding, and that in judging prejudice and the likelihood of a different outcome, "[a] defendant has no entitlement to the luck of a lawless decisionmaker." Id., at 695. [***LEdHR16B] [16B]Whether he was persuaded or compelled to desist from perjury, Whiteside has no valid claim that confidence in the result of his trial has been diminished by his desisting [**999] from the contemplated perjury. Even if we were to assume that [*176] the jury might have believed his perjury, it does not follow that Whiteside was prejudiced. In his attempt to evade the prejudice requirement of Strickland, Whiteside relies on cases involving conflicting loyalties of counsel. In Cuyler v. Sullivan, 446 U.S. 335 (1980), we held that a defendant could obtain relief without pointing to a specific prejudicial default on the part of his counsel, provided it is established that the attorney was "actively [representing] conflicting interests." Id., at 350. Here, there was indeed a "conflict," but of a quite different kind; it was one imposed on the attorney by the client's proposal to commit the crime of fabricating testimony without which, as he put it, "I'm dead." This is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan. Even in that case we did not suggest that all multiple representations necessarily resulted in an active conflict rendering the representation constitutionally infirm. If a "conflict" between a client's proposal and counsel's ethical obligation gives rise to a presumption that counsel's assistance was prejudicially ineffective, every guilty criminal's conviction would be suspect [***141] if the defendant had sought to obtain an acquittal by illegal means. Can anyone doubt what practices and problems would be spawned by such a rule and what volumes of litigation it would generate? [***LEdHR1B] [1B] [***LEdHR10C] [10C] [***LEdHR16C] [16C]Whiteside's attorney treated Whiteside's proposed perjury in accord with professional standards, and since Whiteside's truthful testimony could not have prejudiced the result of his trial, the Court of Appeals was in error to direct the issuance of a writ of habeas corpus and must be reversed. Reversed.

CONCUR BY: BRENNAN; BLACKMUN; STEVENS CONCUR JUSTICE BRENNAN, concurring in the judgment. This Court has no constitutional authority to establish rules of ethical conduct for lawyers practicing in the state courts. Nor does the Court enjoy any statutory grant of jurisdiction over legal ethics. [*177] Accordingly, it is not surprising that the Court emphasizes that it "must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts." Ante, at 165. I read this as saying in another way that the Court cannot tell the States or the lawyers in the States how to behave in their courts, unless and until federal rights are violated. Unfortunately, the Court seems unable to resist the temptation of sharing with the legal community its vision of ethical conduct. But let there be no mistake: the Court's essay regarding what constitutes the correct response to a criminal client's suggestion that he will perjure himself is pure discourse without force of law. As JUSTICE BLACKMUN observes, that issue is a thorny one, post, at 177-178, but it is not an issue presented by this case. Lawyers, judges, bar associations, students, and others should understand that the problem has not now been "decided." I join JUSTICE BLACKMUN's concurrence because I agree that respondent has failed to prove the kind of prejudice necessary to make out a claim under Strickland v. Washington, 466 U.S. 668 (1984).

JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, concurring in the judgment. How a defense attorney ought to act when faced with a client who intends to commit perjury at trial has long been a controversial issue. 1 [***142] But I do not believe [**1000] that a federal [*178] habeas corpus case challenging a state criminal conviction is an appropriate vehicle for attempting to resolve this thorny problem. When a defendant argues that he was denied effective assistance of counsel because his lawyer dissuaded him from committing perjury, the only question properly presented to this Court is whether the lawyer's actions deprived the defendant of the fair trial which the Sixth Amendment is meant to guarantee. Since I believe that the respondent in this case suffered no injury justifying federal habeas relief, I concur in the Court's judgment. 1 See, e. g., Callan & David, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L. Rev. 332 (1976); Rieger, Client Perjury: A Proposed Resolution of the Constitutional and Ethical Issues, 70 Minn. L. Rev. 121 (1985); compare, e. g., Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966), and ABA Standards for Criminal Justice, Proposed Standard 4-7.7 (2d ed. 1980) (approved by the Standing Committee on Association Standards for Criminal Justice, but not yet submitted to the House of Delegates), with Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 Mich. L. Rev. 1485 (1966), and ABA Model Rules of Professional Conduct, Rule 3.3 and comment, at 66-67 (1983). I On February 7, 1977, Emmanual Charles Whiteside stabbed Calvin Love to death. At trial, Whiteside claimed self-defense. On direct examination, he testified that Love's bedroom, where the stabbing had occurred, was "[very] much dark," App. 48, and that he had stabbed Love during an argument because he believed that Love was about to attack him with a weapon: "Q. Did you think that Calvin had a gun? "A. Most definitely I thought that. "Q. Why did you think that? "A. Because of Calvin's reputation, his brother's reputation, because of the prior conversation that Calvin and I had, I didn't have no other choice but to think he had a gun. And when he told his girl friend to give him his piece, I couldn't retreat." Id., at 50. Whiteside's testimony was consistent with that of other witnesses who testified that the room was dark, and that Love [*179] had asked his girlfriend to get his "piece" (which they all believed referred to a weapon). See, e. g., id., at 17-18, 20, 36-37, and 42-45. No gun, however, was ever found. Whiteside, who had been charged with first- degree murder, was convicted of second-degree murder, and sentenced to 40 years' imprisonment. He moved for a new trial, contending that his court- appointed attorneys, Gary Robinson and Donna Paulsen, had improperly coerced his testimony. Whiteside now claimed that he had seen a gun, but had been prevented from testifying to this fact. At an evidentiary hearing on this motion, Whiteside testified that he had told Robinson at their first meeting that he had seen a weapon in Love's hand. Some weeks later, Robinson informed Whiteside that the weapon could not be found and, according to Whiteside, told him to say only that he thought he had seen a gun, rather than that he in fact had seen one. Whiteside "got the impression at one time that maybe if I didn't go along with -- with what was happening, that it was no gun being involved, maybe that he will pull out of my trial." App. to Pet. for Cert. A70. [***143] Robinson's testimony contradicted Whiteside's. According to Robinson, Whiteside did not initially claim to have seen a gun, but rather claimed only that he was convinced Love had had one. Roughly a week before the trial, however, in the course of reviewing Whiteside's testimony, Whiteside "made reference to seeing something 'metallic' . . . . I don't think he ever did say a gun." Id., at A85: "And at the end Donna asked him about that, because that was the first time it had ever been mentioned either to her or to myself. His response to that was, 'in Howard Cook's case there was a gun. If I don't say I saw a gun, I'm dead.' I explained to him at that time that it was not necessary that the gun be physically present for self-defense, one; two, that [**1001] to say that would be perjury on his part because he had never at any time indicated that there was a gun . . . ; three, that we could not allow [*180] him to do that . . . ; four, I advised him that if he did do that it would be my duty to advise the Court of what he was doing . . . ; also, that I probably would be allowed to attempt to impeach that particular testimony. I told him that there was no need for him to lie about what had happened, that he had a good and valid defense on the facts as he had related them to us, and we felt we could present a good self-defense case on the facts he had stated to us." Ibid. Robinson acknowledged that Whiteside's claim of self-defense would have been stronger had the gun been found, but explained that at trial "we tried to create a gun," through testimony from people who had seen Love carrying a gun on other occasions, through a stipulation that Love had been convicted of possession of a weapon, and through suggestions made during cross-examination of the State's witnesses that the initial police search had been too cursory to discover the weapon and that Love's girlfriend had removed it from the apartment prior to a second, more thorough, search. Id., at A87-A88. The trial court rejected Whiteside's motion for a new trial, "[finding] the facts to be as testified to by Ms. Paulsen and Mr. Robinson." App. 57. The Iowa Supreme Court affirmed. State v. Whiteside, 272 N. W. 2d 468 (1978). Whiteside then sought federal habeas relief in the United States District Court for the Southern District of Iowa. The parties agreed to rest on the record made in the state-court proceedings. Chief Judge Stuart held that the trial judge's factual finding that Whiteside would have committed perjury had he testified at trial actually to having seen a gun was fairly supported by the record and thus entitled to a presumption of correctness. See 28 U. S. C. § 2254(d). Since Whiteside had no constitutional right to perjure himself, he had been denied neither a fair trial nor effective assistance of counsel. App. to Pet. for Cert. A41. [*181] The Court of Appeals for the Eighth Circuit reversed. Whiteside v. Scurr, 744 F.2d 1323 (1984). The court recognized that the issue before it was not whether Robinson [***144] had behaved ethically, 2 but rather whether Whiteside had been deprived of effective assistance of counsel. Id., at 1330. In the Court of Appeals' view, Robinson had breached the obligations of confidentiality and zealous advocacy imposed on defense counsel by the Sixth Amendment. In addition, the Court of Appeals concluded that Robinson's actions impermissibly compromised Whiteside's constitutional right to testify in his own behalf by conditioning continued representation and confidentiality on Whiteside's limiting his testimony. 2 The court stated: "That question is governed solely by the Iowa Code of Professional Responsibility, as it was in effect at the time of the trial in this case, and as it has been authoritatively interpreted by the Supreme Court of Iowa. The Supreme Court of Iowa is the last word on all questions of state law, and the Code of Professional Responsibility is a species of state law." 744 F.2d, at 1330. Thus, the court declined to address the question whether Robinson's actions were either compelled or condoned by Iowa law. The court recognized that, under Strickland v. Washington, 466 U.S. 668 (1984), a defendant must normally demonstrate both that his attorney's behavior was professionally unreasonable and that he was prejudiced by his attorney's unprofessional behavior. But it noted that Strickland v. Washington had recognized a "limited" presumption of prejudice when counsel is burdened by an actual conflict of interest that adversely affects his performance, see id., at 692, quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980). Here, Whiteside had shown that Robinson's obligations under the Iowa Code of Professional Responsibility conflicted with his client's wishes, and his threat to testify against Whiteside had adversely affected [**1002] Whiteside by "[undermining] the fundamental [*182] trust between lawyer and client" necessary for effective representation. 744 F.2d, at 1330. Petitioner's motion for rehearing en banc was denied by a vote of 5 to 4. Whiteside v. Scurr, 750 F.2d 713 (CA8 1984). In dissent, Judge John R. Gibson, joined by Judges Ross, Fagg, and Bowman, argued that Whiteside had failed to show cognizable prejudice. Cuyler v. Sullivan was inapposite, both because finding a conflict of interest required making the untenable assumption that Whiteside possessed the right to testify falsely and because Robinson's threat had had no adverse effect on the trial since Whiteside testified fully in his defense. Moreover, the result of the proceeding should not have been different had Whiteside been permitted to testify as he wished. A separate dissent by Judge Fagg, joined by Judges Ross, John R. Gibson, and Bowman, addressed the performance prong of Strickland. Robinson's admonition to Whiteside to testify truthfully simply could not be viewed as creating a conflict of interest; Robinson presented a full and zealous defense at trial; and, although Robinson's warning to defense at trial; and, although Robinson's warning to Whiteside may have been "strident," 750 F.2d, at 718, he had communicated with his client in a manner the client understood. II A The District Court found that the [***145] trial judge's statement that "I find the facts to be as testified to by Ms. Paulsen and Mr. Robinson" was a factual finding that Whiteside "would have perjured himself if he had testified at trial that he actually saw a gun in his victim's hand." App. to Pet. for Cert. A42. This factual finding by the state court is entitled to a presumption of correctness under 28 U. S. C. § 2254(d), which Whiteside has not overcome. Respondent has never attempted to rebut the presumption by claiming that the factfinding procedure employed by Iowa in considering new trial motions in any sense deprived him of [*183] a full and fair hearing or failed to provide a sufficient basis for denying his motion. 3 Although respondent's argument to this Court in large part assumes that the precluded testimony would have been false, see Brief for Respondent 10-11, he contends, first, that the record does not fairly support the conclusion that he intended to perjure himself because he claimed in his first written statement that Love had been pulling a pistol from under a pillow at the time of the stabbing, see App. 55, and, second, that whether Robinson had sufficient knowledge to conclude he was going to commit perjury was a mixed question of law and fact to which the presumption of correctness does not apply. 3 Whiteside's motion for a new trial rested on his recantation of his testimony at trial. As a matter of Iowa law, when a trial judge is faced with a motion for a new trial based on a witness' recantation of his trial testimony, the judge must decide whether the recantation is believable: "The trial court is not required to believe the recantation, but must make its decision on the basis of the whole trial and the matters presented on the hearing on the motion. Premised thereon, if it believes the [post conviction] statements . . . are false, and is not reasonably well satisfied that the testimony given by the witness on the trial was false, it should deny the motion, and it is not at liberty to shift upon the shoulders of another jury the responsibility to seek out the truth of that matter." State v. Compiano, 261 Iowa 509, 517, 154 N. W. 2d 845, 849 (1967). See also, e. g., State v. Taylor, 287 N. W. 2d 576, 578 (Iowa 1980); State v. McGhee, 280 N. W. 2d 436, 442 (Iowa 1979), cert. denied, 444 U.S. 1039 (1980); cf. United States v. Johnson, 327 U.S. 106, 110-111 (1946). Neither contention overcomes the presumption of correctness due the state court's finding. First, the trial judge's implicit decision not to credit the written statement is fairly supported by Robinson's testimony that the written statement had not been prepared by Whiteside alone and that, from the time of their initial meeting until the week before trial, Whiteside never [**1003] again claimed to have seen a gun. See App. to Pet. for Cert. A78-A79. Second, the finding properly accorded a presumption of correctness by the courts below was that Whiteside's "proposed testimony would [have [*184] been] deliberately untruthful." State v. Whiteside, 272 N. W. 2d, at 471. The lower courts did not purport to presume the correctness of the Iowa Supreme Court's holding concerning the mixed question respondent identifies -- whether Robinson's response to Whiteside's proposed testimony deprived Whiteside of effective representation. B The Court approaches this case as if the performance-and-prejudice standard requires us in every case to determine "the perimeters of [the] range of reasonable professional assistance," [***146] ante, at 165, but Strickland v. Washington explicitly contemplates a different course: "Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." 466 U.S., at 697. See also Hill v. Lockhart, 474 U.S. 52, 60 (1985). In this case, respondent has failed to show any legally cognizable prejudice. Nor, as is discussed below, is this a case in which prejudice should be presumed. The touchstone of a claim of prejudice is an allegation that counsel's behavior did something "to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S., at 687. The only effect Robinson's threat had on Whiteside's trial is that Whiteside did not [*185] testify, falsely, that he saw a gun in Love's hand. 4 Thus, this Court must ask whether its confidence in the outcome of Whiteside's trial is in any way undermined by the knowledge that he refrained from presenting false testimony. See id., at 694. 4 This is not to say that a lawyer's threat to reveal his client's confidences may never have other effects on a defendant's trial. Cf. United States ex rel. Wilcox v. Johnson, 555 F.2d 115 (CA3 1977) (finding a violation of Sixth Amendment when an attorney's threat to reveal client's purported perjury caused defendant not to take the stand at all). This Court long ago noted: "All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth. Therefore it cannot be denied that it tends to defeat the sole ultimate objective of a trial." In re Michael, 326 U.S. 224, 227 (1945). When the Court has been faced with a claim by a defendant concerning prosecutorial use of such evidence, it has "consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury" (footnote omitted). United States v. Agurs, 427 U.S. 97, 103 (1976). See also, e. g., Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 216 (1942); Mooney v. Holohan, 294 U.S. 103, 112 (1935). Similarly, the Court has viewed a defendant's use of such testimony as so antithetical to our system of justice that it has permitted the prosecution to introduce otherwise inadmissible evidence to combat it. See, e. g., United States v. Havens, 446 U.S. 620, 626-627 [***147] (1980); [**1004] Oregon v. Hass, 420 U.S. 714, 720-723 (1975); Harris v. New York, 401 U.S. 222, 225-226 (1971); Walder v. United States, 347 U.S. 62, 65 (1954). The proposition that presenting false evidence could contribute to (or that withholding such evidence could detract from) the reliability of a criminal trial is simply untenable. [*186] It is no doubt true that juries sometimes have acquitted defendants who should have been convicted, and sometimes have based their decisions to acquit on the testimony of defendants who lied on the witness stand. It is also true that the Double Jeopardy Clause bars the reprosecution of such acquitted defendants, although on occasion they can be prosecuted for perjury. See, e. g., United States v. Williams, 341 U.S. 58, 63-65 (1951). But the privilege every criminal defendant has to testify in his own defense "cannot be construed to include the right to commit perjury." Harris v. New York, 401 U.S., at 225. 5 To the extent that Whiteside's claim rests on the assertion that he would have been acquitted had he been able to testify falsely, Whiteside claims a right the law simply does not recognize. "A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed." Strickland v. Washington, 466 U.S., at 695. Since Whiteside was deprived of neither a fair trial nor any of the specific constitutional [*187] rights designed to guarantee a fair trial, he has suffered no prejudice. 5 Whiteside was not deprived of the right to testify in his own defense, since no suggestion has been made that Whiteside's testimony was restricted in any way beyond the fact that he did not claim, falsely, to have seen a gun in Love's hand. I must confess that I am somewhat puzzled by the Court's implicit suggestion that whether a defendant has a constitutional right to testify in his own defense remains an open question. Ante, at 164. It is true that in Ferguson v. Georgia, 365 U.S. 570 (1961), the Court expressly declined to address the question of a defendant's constitutional right to testify, but that was because the case did not properly raise the issue. Id., at 572, n. 1. Since then, the Court repeatedly has referred to the existence of such a right. See, e. g., Jones v. Barnes, 463 U.S. 745, 751 (1983) (the defendant has the "ultimate authority to make certain fundamental decisions regarding the case, [such as] . . . whether to . . . testify in his or her own behalf"); Brooks v. Tennessee, 406 U.S. 605, 612 (1972) ("Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right"); Harris v. New York. I cannot imagine that if we were presented with a state statute that prohibited a defendant from testifying at his own trial, we would not rule that it violates both the Sixth and Fourteenth Amendments, as well as, perhaps, the Fifth. The Court of Appeals erred in concluding that prejudice should have been presumed. Strickland v. Washington found such a presumption appropriate in a case where an attorney labored under "'an actual conflict of interest [that] adversely affected his . . . performance,'" id., at 692, quoting Cuyler v. Sullivan, 446 U.S., at 348. In this case, however, no actual conflict existed. I have already discussed why Whiteside had no right to Robinson's help in presenting perjured testimony. Moreover, Whiteside has identified no right to [***148] insist that Robinson keep confidential a plan to commit perjury. See Committee on Professional Ethics and Conduct of Iowa State Bar Assn. v. Crary, 245 N. W. 2d 298, 306 (Iowa 1976). The prior cases where this Court has reversed convictions involved conflicts that infringed a defendant's legitimate interest in vigorous protection of his constitutional rights. See, e. g., Wood v. Georgia, 450 U.S. 261, 268-271 (1981) (defense attorney paid by defendants' employer might have pursued employer's interest in litigating a test case rather than obtaining leniency for his clients by cooperating with prosecution); Glasser v. United States, 315 U.S. 60, 72-75 (1942) [**1005] (defense attorney who simultaneously represented two defendants failed to object to certain potentially inadmissible evidence or to cross-examine a prosecution witness in an apparent attempt to minimize one codefendant's guilt). Here, Whiteside had no legitimate interest that conflicted with Robinson's obligations not to suborn perjury and to adhere to the Iowa Code of Professional Responsibility. In addition, the lawyer's interest in not presenting perjured testimony was entirely consistent with Whiteside's best interest. If Whiteside had lied on the stand, he would have risked a future perjury prosecution. Moreover, his testimony would have been contradicted by the testimony of other eyewitnesses and by the fact that no gun was ever found. In light of that impeachment, the jury might have [*188] concluded that Whiteside lied as well about his lack of premeditation and thus might have convicted him of first-degree murder. And if the judge believed that Whiteside had lied, he could have taken Whiteside's perjury into account in setting the sentence. United States v. Grayson, 438 U.S. 41, 52-54 (1978). 6 In the face of these dangers, an attorney could reasonably conclude that dissuading his client from committing perjury was in the client's best interest and comported with standards of professional responsibility. 7 In short, Whiteside failed to show the kind of conflict that poses a danger to the values of zealous and loyal representation embodied in the Sixth Amendment. A presumption of prejudice is therefore unwarranted. 6 In fact, the State apparently asked the trial court to impose a sentence of 75 years, see Tr. 4 (Aug. 26, 1977), but the judge sentenced Whiteside to 40 years' imprisonment instead. 7 This is not to say that an attorney's ethical obligations will never conflict with a defendant's right to effective assistance. For example, an attorney who has previously represented one of the State's witnesses has a continuing obligation to that former client not to reveal confidential information received during the course of the prior representation. That continuing duty could conflict with his obligation to his present client, the defendant, to cross-examine the State's witnesses zealously. See Lowenthal, Successive Representation by Criminal Lawyers, 93 Yale L. J. 1 (1983). C In light of respondent's failure to show any cognizable prejudice, I see no need to "grade counsel's performance." Strickland v. Washington, 466 U.S., at 697. The only federal issue in this case is whether Robinson's behavior deprived Whiteside of the effective assistance of counsel; it is not whether Robinson's behavior [***149] conformed to any particular code of legal ethics. Whether an attorney's response to what he sees as a client's plan to commit perjury violates a defendant's Sixth Amendment rights may depend on many factors: how certain the attorney is that the proposed testimony is false, the stage [*189] of the proceedings at which the attorney discovers the plan, or the ways in which the attorney may be able to dissuade his client, to name just three. The complex interaction of factors, which is likely to vary from case to case, makes inappropriate a blanket rule that defense attorneys must reveal, or threaten to reveal, a client's anticipated perjury to the court. Except in the rarest of cases, attorneys who adopt "the role of the judge or jury to determine the facts," United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (CA3 1977), pose a danger of depriving their clients of the zealous and loyal advocacy required by the Sixth Amendment. 8 8 A comparison of this case with Wilcox is illustrative. Here, Robinson testified in detail to the factors that led him to conclude that respondent's assertion he had seen a gun was false. See, e. g., Tr. 38-39, 43, 59 (July 29, 1977). The Iowa Supreme Court found "good cause" and "strong support" for Robinson's conclusion. State v. Whiteside, 272 N. W. 2d 468, 471 (1978). Moreover, Robinson gave credence to those parts of Whiteside's account which, although he found them implausible and unsubstantiated, were not clearly false. See Tr. 52-53 (July 29, 1977). By contrast, in Wilcox, where defense counsel actually informed the judge that she believed her client intended to lie and where her threat to withdraw in the middle of the trial led the defendant not to take the stand at all, the Court of Appeals found "no evidence on the record of this case indicating that Mr. Wilcox intended to perjure himself," and characterized counsel's beliefs as "private conjectures about the guilt or innocence of [her] client." 555 F.2d, at 122. [**1006] I therefore am troubled by the Court's implicit adoption of a set of standards of professional responsibility for attorneys in state criminal proceedings. See ante, at 168-171. The States, of course, do have a compelling interest in the integrity of their criminal trials that can justify regulating the length to which an attorney may go in seeking his client's acquittal. But the American Bar Association's implicit suggestion in its brief amicus curiae that the Court find that the Association's Model Rules of Professional Conduct should govern an attorney's responsibilities is addressed to the wrong audience. It is for the States to decide how attorneys should conduct themselves in state criminal proceedings, and [*190] this Court's responsibility extends only to ensuring that the restrictions a State enacts do not infringe a defendant's federal constitutional rights. Thus, I would follow the suggestion made in the joint brief amici curiae filed by 37 States at the certiorari stage that we allow the States to maintain their "differing approaches" to a complex ethical question. Brief for State of Indiana et al. as Amici Curiae 5. The signal merit of asking first whether a defendant has shown any adverse prejudicial effect before inquiring into his attorney's performance is that it avoids unnecessary federal interference in a State's regulation of its bar. Because I conclude that the respondent in this case failed to show such an effect, I join the Court's judgment that he is not entitled to federal habeas relief.

JUSTICE STEVENS, concurring in the judgment. [***150] Justice Holmes taught us that a word is but the skin of a living thought. A "fact" may also have a life of its own. From the perspective of an appellate judge, after a case has been tried and the evidence has been sifted by another judge, a particular fact may be as clear and certain as a piece of crystal or a small diamond. A trial lawyer, however, must often deal with mixtures of sand and clay. Even a pebble that seems clear enough at first glance may take on a different hue in a handful of gravel. As we view this case, it appears perfectly clear that respondent intended to commit perjury, that his lawyer knew it, and that the lawyer had a duty -- both to the court and to his client, for perjured testimony can ruin an otherwise meritorious case -- to take extreme measures to prevent the perjury from occurring. The lawyer was successful and, from our unanimous and remote perspective, it is now pellucidly clear that the client suffered no "legally cognizable prejudice." Nevertheless, beneath the surface of this case there are areas of uncertainty that cannot be resolved today. A lawyer's certainty that a change in his client's recollection is a [*191] harbinger of intended perjury -- as well as judicial review of such apparent certainty -- should be tempered by the realization that, after reflection, the most honest witness may recall (or sincerely believe he recalls) details that he previously overlooked. Similarly, the post-trial review of a lawyer's pretrial threat to expose perjury that had not yet been committed -- and, indeed, may have been prevented by the threat -- is by no means the same as review of the way in which such a threat may actually have been carried out. Thus, one can be convinced -- as I am -- that this lawyer's actions were a proper way to provide his client with effective representation without confronting the much more difficult questions of what a lawyer must, should, or may do after his client has given testimony that the lawyer does not believe. The answer to such questions may well be colored by the particular circumstances attending the actual event and its aftermath. Because JUSTICE BLACKMUN has preserved such questions for another day, and because I do not understand him to imply [**1007] any adverse criticism of this lawyer's representation of his client, I join his opinion concurring in the judgment. REFERENCES 21A Am Jur 2d, Criminal Law 748, 749, 751, 752 16 Federal Procedure, L Ed, Habeas Corpus 41:170 5 Am Jur Proof of Facts 2d 267, Ineffective Assistance of Counsel 20 Am Jur Trials 1, Federal Habeas Corpus Practice USCS, Constitution, Sixth Amendment US L Ed Digest, Attorneys 17; Criminal Law 46.4, 46.6; Habeas Corpus 47 Index to Annotations, Attorney-Client Privilege; Attorney or Assistance of Attorney; Criminal Law; Habeas Corpus Annotation References: Accused's right to counsel under the Federal Constitution. 93 L Ed 137, 2 L Ed 2d 1644, 9 L Ed 2d 1260, 18 L Ed 2d 1420. Circumstances giving rise to prejudicial conflict of interests between criminal defendant and defense counsel. 53 ALR Fed 140; 18 ALR4th 360. Modern status of rule as to test in federal court of effective representation by counsel. 26 ALR Fed 218. Modern status of rules and standards in state courts as to adequacy of defense counsel's representation of criminal client. 2 ALR4th 27.


THE PEOPLE, Plaintiff and Respondent, v. MARVIN BLYE, Defendant and Appellant Crim. No. 125 Court of Appeal of California, Fifth Appellate District 233 Cal. App. 2d 143; 43 Cal. Rptr. 231; 1965 Cal. App. LEXIS 1346 March 22, 1965

PRIOR HISTORY: [***1] APPEAL from a judgment of the Superior Court of Stanislaus County. David F. Bush, Judge. Prosecution for burglary.

DISPOSITION: Reversed. Judgment of conviction reversed.

JUDGES: Conley, P. J. Brown (R.M.), J., and Stone, J., concurred. OPINION BY: CONLEY OPINION [*144] [**232]

On this appeal, the defendant, Marvin Blye, contends that he was deprived of any chance to present a defense by virtue of actions of his appointed attorney, the Public Defender of Stanislaus County, contrary to his own wishes and at least in one major instance over his virtual objection as established by the record. It is indicated that he was an escapee from a mental institution near Spokane; that he had "thumbed" a ride from the State of Washington to [**233] Modesto on his way to southern California; that the night came on and that he was sick and short of money, and that he became "angry at the world." It is claimed that he indulged in three preceding [***2] down-town burglaries, the chief gain to him being five cookies from a bakery, which he ate on the street; and that he finally kicked in a plate glass window of a pawn shop known as Unclaimed Luggage Sales and Loans and took three used wrist watches from a tray in the window. This last entry, and two of the other alleged illegal entrances to stores, were charged as burglaries. The counts relative to the two additional entries were dismissed prior to trial, but the alleged burglary which resulted in the stealing of the watches brought about his conviction and incarceration in the state prison. In the process of kicking a hole in the plate glass window, the defendant severely cut his left ankle; when he was apprehended in a bar nearby he was bleeding profusely; the police testified that they traced the progress of the defendant [*145] between the point of the commission of the crime and his place of arrest from blood stains on the sidewalk. Pursuant to repeated examinations by various members of the police department, apparently without any warning that he had a constitutional right to remain silent and that he was entitled to the services of an attorney, the defendant admitted [***3] finally that he had broken the window and had stolen the watches, intimating at one time that he had decided to do something of the kind to provoke an arrest. The Public Defender of Stanislaus County was appointed to represent him at the trial. When Mr. Blye first appeared in court, the presiding judge conceived a doubt as to his existing sanity, and appointed two Modesto doctors to examine him; they reported that the defendant was not legally insane at that time and that he was able to carry on his own defense. (1) Thereafter, the defendant refused personally to enter a plea, and the court, after consultation with the defense attorney, directed the clerk as to each count to enter a plea of "not guilty" and a plea of "not guilty by reason of insanity." Thus, the defendant did not personally enter the plea of "not guilty by reason of insanity." Whether that makes a difference technically may be the subject of diverging opinions, but in the judgment of this court it should not make any difference, inasmuch as the pleas once entered were in fact existent and viable; in our opinion, a defendant in those circumstances had the same right to a continuance of the formal status of the pleadings [***4] as if he had correctly entered such pleas personally. (See People v. Merkouris, 46 Cal.2d 540, 551 [297 P.2d 999].) (2a) In any event, the plea of "not guilty by reason of insanity" was later withdrawn by his attorney contrary to the wishes of the defendant, as indicated in the record, and the question to be determined is whether or not when a trial has been initiated with a plea of "not guilty by reason of insanity" the attorney for the defendant may abandon that defense, contrary to the wishes of the defendant himself as expressed in the record. (3) The prosecution, relying upon the majority opinion in the case of People v. Gaines, 58 Cal.2d 630 [25 Cal.Rptr. 448, 375 P.2d 296], maintains that the attorney for the defendant had a right to withdraw the plea of "not guilty by reason of insanity" on the general theory that a defense attorney has the unquestioned choice of conducting the case as he sees fit and that whatever he says is binding on the defendant [*146] himself. However, the court provided room in the majority opinion for the exception which exists here. On page 636, it is stated: "In the absence of a statute requiring that the withdrawal of a plea [***5] of 'not guilty by reason of insanity' be made by a defendant himself, or the presence of some compelling circumstance not shown here, we should not depart from the customary practice by which [**234] an attorney acts for his client throughout the trial." (Italics added.) It is further noted on the same page: ". . . in the present case no claim is made by defendant that his attorney lacked authority to withdraw the plea." (2b) Here, there exist "compelling circumstances" not shown in the Gaines case; and it is apparent from the supplemental reporter's transcript that the defendant did not authorize his attorney to withdraw the plea, but opposed such a move. After the appointed attorney for the defendant asked leave of court to withdraw the plea of "not guilty by reason of insanity" on the ground that he had no readily available testimony to present, and on the further ground that the appointed doctors had filed reports showing that the defendant was not presently insane, and indicating that, if they were called to the witness stand in the insanity trial, they would testify that, in their opinion, he was not insane at the time of the alleged crime, the court saw fit to address [***6] Mr. Blye; the following proceedings took place: "The Court: . . . Now, Mr. Blye, you heard what your attorney has said here. As you recall, you refused to enter a plea and I entered a plea of not guilty for you to protect your rights, and then your attorney in a further effort to protect your rights, without your approval but with my consent, entered the further plea of not guilty by reason of insanity, and I appointed two additional psychiatrists to examine you at that time. The two additional psychiatrists that I appointed were Dr. Gallup, and Dr. O'Brien, both of the Modesto State Hospital, and it is true that they have both filed their reports stating, in their opinion, you are sane and were sane at the time of the commission of the act for which you are on trial. It is also true, as Attorney Hancock said, that on an entry of a plea of not guilty by reason of insanity that the burden of proof is on you that you are legally insane. Now, in view of the fact that we have these reports of these psychiatrists that you are sane, were sane at the time this act was committed, I would be disposed to grant your attorney's request to withdraw that plea, but I would like to hear from you [***7] before I do that. [*147] "The Defendant: I've been in two hospitals for the last three years and they ain't got none of my hospital records or reports or no recommendations from my doctors from either of the two hospitals. I'm a very upset person and I'm sick. I know I'm sick and I know that I need medical attention and I should be on medicine right now for my condition and there ain't nobody going to tell me different because I know I'm sick. "The Court: Well, all right, but the question -- your attorney has entered this plea in an additional effort to protect your rights, but he's the one that entered the plea in your behalf, you didn't. Now he's explained the situation. He's got no evidence to support that plea and he desires to withdraw the plea. "The Defendant: Why don't they get my hospital records down here, or the doctors from the hospitals down here to prove that I am sick?" It was further shown at the time that defense counsel had not received final letters from the two mental institutions where the defendant stated that he had been confined in Washington and Utah specifying his treatment there, inasmuch as he had apparently used a different name when he was [***8] incarcerated in those institutions. The attorney appointed by the court seemed to think that no matter what the official records showed in the other two states, they could not be admitted in evidence. However, this was probably an error. (Uniform Business Records as Evidence Act, Code Civ. Proc., § 1953e et seq.) In any event, the court took it upon itself to follow the request of the defense attorney rather than to take cognizance of the [**235] wishes of the defendant himself. The defendant was thus denied an opportunity to attempt to establish one of his pleaded defenses, and in the circumstances here proven, it was a fundamental error for the court to permit an erasure of the plea contrary to the defendant's wishes. (4a) Another error complained of is that immediately after his attorney announced that the defendant rested without taking the stand or calling any witness in his own behalf, a court session was held in the chambers of the judge in the absence of the defendant; at that time, the following proceedings occurred: "The Court: Let the record show that this is a conference in the Judge's office attended by the Deputy District Attorney Pendergrass, Mr. Hancock, attorney [***9] for the defendant, and the Court. [*148] "Do you desire to make a statement at this time, Mr. Hancock? "Mr. Hancock: Yes, Your Honor. I would like to state for the record and in the presence of the Court and the prosecution that I have on numerous occasions attempted to communicate with this man [the defendant] and I have been more or less unsuccessful in doing so. I have, at the conclusion of the Prosecution's case, after they had introduced evidence that the man was caught near the scene of the crime; that a trail of blood was followed from the man to the scene of the crime; that he had in his possession some articles taken from -- taken in the burglary which were identified as having been taken in the burglary; that he admitted to police officers on more than one occasion that he had broken this window and had taken the articles, namely, watches; that after this I had -- and after he had also apparently told some of the police officers that he was mad and that he had escaped from a mental institution, and that he did this in order to get arrested, I had asked him if he wanted to take the stand and explain why he did this. He stated that he did not take -- that he would [***10] not take the stand and admit that he had done it. That if he took the stand, he would deny that he had broken into the place and taken anything from there. "I feel that under all the circumstances and the evidence which has been produced, that it would be unwise and perhaps unethical for me to allow this man to take the stand and obviously perjure himself. I do not feel that it would further his cause in any way and I therefore do not intend to call him as a witness, and there is no other evidence which I have to offer in this case." It is unnecessary to discuss the legal ethics involved in a full disclosure to the court and prosecuting counsel of the elements of a private conference between the defendant and his attorney such as is illustrated here. ( Bus. & Prof. Code, § 6068, subd. (e).) It will be sufficient to remark that no such proceedings were permissible under any circumstances in the absence of the defendant. (Cal. Const., art. I, § 13; Pen. Code, §§ 1043, 1181, subd. 1; Witkin, Cal. Criminal Procedure, Trial, § 388, p. 385.) During the defendant's absence, these proceedings established for the record that the appointed attorney for the defense did not see fit to permit [***11] the defendant to take the witness stand in his own defense on the basic ground that he disbelieved in advance what the defendant would say with regard to the alleged burglary. [*149] If defense counsel, notwithstanding that this was a criminal case ( Bus. & Prof. Code, § 6068, subd. (c)), felt that he could not in any sense vouch for the testimony of his client and that to permit him to state the facts as he saw them would be to approve perjury, the attorney could have requested the court to grant him leave to withdraw from the case and to appoint some other attorney to represent the defendant. [**236] (5) We do not seek to abrogate the well-established rule that once an attorney appears and acts for a defendant in the trial of a case, it is his duty to follow his own best judgment as to what should be done in the litigation except as to certain basic rights such as the entry of a plea or the right to a jury. ( People v. Gibbs, 188 Cal.App.2d 596, 603- 604 [10 Cal.Rptr. 581]; People v. Merkouris, supra, 46 Cal.2d 540, 554; In re Atchley, 48 Cal.2d 408, 418 [310 P.2d 15].) (6) But if the record shows that a defendant makes proper and timely demand to take the [***12] stand contrary to the advice given by his counsel, such a defendant has the right to give an exposition of his defense before a jury. This insistence may be fatal to his chances of acquittal, but to prevent him from doing so, if the record adequately shows his firm desire to testify, would be to deny him a right that every defendant should have in a criminal case. In such circumstances, a defendant should first request the court to remove his attorney and substitute a new lawyer or the defendant in person. ( People v. Jackson, 186 Cal.App.2d 307, 315 [8 Cal.Rptr. 849].) Here, the record does not show affirmatively that the defendant effectively demanded the right to take the stand against the advice of his attorney, and the judgment, therefore, cannot be reversed on that ground. (4b) But by not being present during the proceedings in the judge's chambers, the defendant may well have been deprived of an opportunity to object to his exclusion from the witness stand; and it is certain that he was not fairly treated by being subjected, in his absence, to what was said by his counsel to the court and the prosecuting attorney. (7) The test of the effect of absence of a defendant during [***13] part of a criminal trial is whether or not he was damaged ( People v. Teitelbaum, 163 Cal.App.2d 184, 207-208 [329 P.2d 157]) or prevented from having "a fair and just hearing of his case" ( People v. Leyva, 187 Cal.App.2d 249, 256 [9 Cal.Rptr. 469]). (4c) We would be creating a dangerous and unwarranted precedent if we were to hold that a [*150] criminal defendant is not damaged, or deprived of a fair hearing, by his absence at a recorded meeting of the court and counsel during which his attorney exposes in detail his conferences with the defendant and also indicates his belief that he is guilty. Unlike the situation disclosed in In re Lessard, 62 Cal.2d 497, 506 [42 Cal.Rptr. 583, 399 P.2d 39], defendant's absence here bore a ". . . reasonable substantial relation to a full opportunity to defend himself" and impaired his ". . . right to a fair trial." In the words of Chief Justice Traynor in his dissenting opinion in People v. Gaines, supra, 58 Cal.2d 630, 641: "Counsel's withdrawal of the plea of not guilty by reason of insanity removed a legal excuse for the crime and was in effect a plea that 'whereas before I pleaded that I did not do this act, [***14] but if I did, I am to be excused, now I plead that I did not do this act, but if I did, I have no excuse." And in the circumstances shown by the record, the defendant did not produce any evidence to support his plea of "not guilty." All things considered, we do not believe that he had a fair trial. This belief is further strengthened by the state of the record relative to his alleged confession to the police. The appellant does not raise the question whether these confessions should have been received in evidence under the principles enunciated in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 109, 398 P.2d 361], and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977]. Nevertheless the Attorney General sees fit to discuss certain phases of that question. We do not believe that it would be proper for us to discuss this showing by the Attorney General at this [**237] time as the case will have to be retried and the record in the second trial may differ materially from the present reporter's transcript. There will doubtless then be a careful consideration by court and counsel of the impact of the Dorado and Escobedo decisions; we assume [***15] that adequate objections will be made and the entire surroundings of the confessional statements will be brought to the attention of the trial court. For the reasons given, the judgment is reversed.


The PEOPLE of the State of Colorado, Petitioner, v. Glen O. SCHULTHEIS, Respondent No. 80SC229 Supreme Court of Colorado 638 P.2d 8; 1981 Colo. LEXIS 786 October 19, 1981

PRIOR HISTORY: [**1] Certiorari to the Colorado Court of Appeals.

DISPOSITION: Judgment Reversed and Cause Remanded with Directions. COUNSEL: J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solictor General, J. Stephen Phillips, First Assistant Attorney General, Litigation Section, Jeffrey Weinman, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner. Craig A. Murdock, Denver, Colorado, Attorney for Respondent. Dale Tooley, District Attorney, Second Judicial District, Brooke Wunnicke, Chief Appellate District Attorney, Stephen S. Marsters, Chief Deputy District Attorney, Denver, Colorado, Amicus Curiae. JUDGES: En Banc. Justice Erickson. OPINION BY: ERICKSON OPINION [*9]

We granted certiorari to review People v. Schultheis, 44 Colo. App. 452, 618 P.2d 710 (1980), which held that defense counsel has an affirmative duty to withdraw when an accused demands that defense counsel call witnesses to present perjured alibi testimony. The court of appeals also held that, under such circumstances, the trial court must grant defense counsel's motion to withdraw. We reverse and remand to the court of appeals with directions to affirm the defendant's [**2] conviction for first- degree murder. While incarcerated at the Denver County Jail, Glen O. Schultheis was charged with murder and sexual assault of one of his fellow inmates. The victim, Joseph C. Dodrill, was dubbed a "snitch" by other inmates. Schultheis agreed to kill Dodrill for $ 75. However, he waived the fee with the understanding that he would "have some fun" with the victim before he killed him. [*10] A plan was made to lead Dodrill back to his cell with Schultheis shortly before 7:00 p.m. on June 10, 1977, when jail cells were automatically locked for approximately two hours. During that time, Dodrill was strangled, his throat was cut, and he was stabbed repeatedly in the head and back. The words "Life is really a trip you know" were carved on the victim's back and buttocks. The body was discovered with a homemade knife implanted in the victim's back. Schultheis subsequently described the grisly homicide to several inmates, and said that he had sodomized Dodrill before he killed him. Some of the inmates saw Schultheis in the cell with Dodrill shortly after 7:00 p.m. Apart from the physical evidence, a number of inmates, after being granted immunity, testified [**3] as to the agreement made by Schultheis to kill Dodrill and as to the events which occurred after Schultheis and Dodrill were locked in the same cell together. The defendant initially tendered a plea of not guilty by reason of insanity. He was then examined by two court-appointed psychiatrists, and admitted his culpability to both. 1 When both psychiatrists reported that Schultheis was sane, the initial plea was withdrawn and Schultheis entered a plea of not guilty. 1 The psychiatric examinations were made pursuant to section 16-8-101, et seq., C.R.S. 1973 (1978 Repl. Vol. 8). The reports of the psychiatric examinations were then made available to the defense counsel, the prosecutor, and the trial judge. Section 16-8- 106(4), C.R.S. 1973 (1978 Repl. Vol. 8). On the morning of trial, Schultheis arrived in jail clothing, asked for a continuance, and announced that he would not proceed to trial because his defense counsel was inadequate and unprepared. He asserted that his lawyer refused to subpoena two [**4] alibi witnesses who would testify that he was not in the cell with Dodrill at the time of the homicide. After some discussion, court- appointed defense counsel stated that he "refused to affirmatively put on evidence that [he knew] was fabricated." Counsel then asked to make a record outside the presence of the prosecutor and the trial judge, and moved to withdraw from the case on the grounds of irreconcilable differences. The court granted counsel the right to make a record, but denied the motions for continuance and for withdrawal. Schultheis and his counsel made a record out of the presence of the trial judge and the prosecutor to establish the basis of their disagreement. The record showed that, two days before trial, the defendant asked his counsel to call certain witnesses from the Denver County Jail to testify in his behalf. Counsel refused, declaring that he would not call the prisoners as witnesses because he "knew their testimony would be fabricated" and that, as a lawyer, he had an ethical duty to refrain from presenting perjured testimony. Defense counsel, according to the record, knew that the witnesses would lie because of his own conversations with Schultheis [**5] and because of a prior conversation Schultheis had with one of the examining psychiatrists. 2 2 The defendant described to one of the examining psychiatrists, in great detail, how he had killed the victim. This description was contained in the psychiatrist's report to the court. After defense counsel made his record, he proceeded to represent Schultheis at the trial. The two alibi witnesses were not called to testify, and Schultheis was convicted of first-degree murder. Schultheis appealed to the court of appeals, which reversed his conviction. People v. Schultheis, supra. The court of appeals held that a lawyer has an affirmative duty to withdraw from a case in which his client is intent upon presenting perjured witness testimony, and, under such circumstance, the court must grant the lawyer's motion to withdraw. The court of appeals also held that a lawyer who withdraws from such a situation may not state the factual basis for the motion to withdraw. In its view, if counsel knows that his continued [**6] employment will result in a disciplinary violation, he must refer to the specific provisions of the Code of Professional Responsibility [*11] that prohibit a lawyer from using perjured testimony or false evidence. We granted certiorari, and for the reasons set forth in this opinion, we reverse the court of appeals. I. We first address the court of appeals' holding that a lawyer has an affirmative duty to withdraw from a case when his client insists upon presenting perjured testimony through alibi witnesses. In reaching its decision, the court of appeals concluded that Schultheis was denied effective assistance of counsel because his lawyer acted as an amicus curiae rather than as an active advocate. See generally, Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We disagree and conclude that, in this instance, the concepts of professional ethics and effective representation of a client are not inconsistent. 3 3 At this juncture, we must distinguish this case from one where the accused client insists upon testifying in his own defense and makes known to counsel his intent to commit perjury. See Erickson, The Perjurious Defendant: A Proposed Solution to the Defense Lawyer's Conflicting Ethical Obligations to the Court and to His Client, 59 Den. L.J. 75 (1981). [**7] A. The American adversary system of criminal justice is not inquisitorial, but accusatorial. It consists of the presentation of evidence to the judge or jury by trained advocates, according to established rules, so that conflicting factual issues may be resolved to arrive at the truth. The integrity of the adversary system can be maintained only if both prosecution and defense counsel present reliable evidence to guide the trier of fact. Honesty and candor are essential to the fair and impartial administration of justice. Consequently, a lawyer has a professional duty not to perpetrate a fraud upon the court by knowingly presenting perjured testimony or other false evidence. See C.R.C.P. 220; Code of Professional Responsibility, DR 7- 102(A)(4), EC 7-26; ABA, Standards Relating to the Defense Function § 4-7.5(a) (2d ed. 1980) (hereinafter cited as ABA Defense Standards); People v. Radinsky, 176 Colo. 357, 490 P.2d 951 (1971); Herbert v. United States, 340 A.2d 802 (D.C. 1975); People v. Pike, 58 Cal.2d 70, 372 P.2d 656, 22 Cal. Rptr. 664 (1962). See generally, M. Freedman, Lawyers' Ethics in an Adversary System, 32 (1975). It is unprofessional conduct [**8] for a lawyer, while representing a client, to perpetrate or aid in the perpetration of a crime or a dishonest act. See Code of Professional Responsibility, DR 7- 102(A)(7), (8). A lawyer who presents a witness knowing that the witness intends to commit perjury thereby engages in the subornation of perjury. 4 We will not permit the truth-finding process to be deflected by the presentation of false evidence by an officer of the court. Therefore, we hold that a lawyer may not offer testimony of a witness which he knows is false, fraudulent, or perjured. 4 See section 18-8-501, et seq., C.R.S. 1973 (now in 1978 Repl. Vol. 8). A lawyer's belief that a witness intends to offer false testimony, however, must be based upon an independent investigation of the evidence or upon distinct statements by his client or the witness which support that belief. A mere inconsistency in the client's story is insufficient in and of itself to support the conclusion that a witness will offer false testimony. In this [**9] case, the record shows a substantial basis for defense counsel's knowledge that the alibi witnesses would present perjured testimony. The reports of the examining psychiatrists and the defendant's own conversations with his lawyer are inconsistent with the allegation that defense counsel was usurping the province of the jury by judging the credibility of the proposed alibi witnesses. Accordingly, counsel was correct in refusing to call the witnesses which the defendant located to support his spurious defense of alibi. B. The court of appeals concluded that defense counsel departed from his role [*12] as an advocate and became an amicus curiae by continuing to represent Schultheis in light of their disagreement over calling the alibi witnesses. In its view, the continued representation deprived the defendant of the effective assistance of counsel guaranteed by the United States and Colorado Constitutions. 5 The weight of authority does not support such a conclusion. Defense counsel is not the alter-ego or mouthpiece of the accused, but is a trained advocate charged with representing an accused within the parameters of the Code of Professional Responsibility and according [**10] to his obligations and duties as an officer of the court. ABA Defense Standards § 4-1.1, Commentary at 4.9; Johnson v. United States, 124 U.S. App. D.C. 29, 360 F.2d 844 (D.C. Cir. 1966) (Burger, J., concurring). It is the function of defense counsel, and not the defendant, to determine what witnesses will be called to support the defense case: "The decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with the client." ABA Defense Standards § 4-5.2(b). See also, ABA Defense Standards § 4- 3.1(b). The defendant, therefore, could not compel his counsel to call witnesses to present a fabricated alibi. 6 When defense counsel makes an informed and intelligent decision as to the witnesses who are to be called, it is not error that the decision was based on ethical considerations. See generally, People v. Herrera, 188 Colo. 403, 534 P.2d 1199 (1975); People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973); Steward v. People, 179 Colo. 31, [**11] 498 P.2d 933 (1972); Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971); Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965). II, Sec. 16. 6 See State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976). According to ABA Defense Standards § 4-5.2(a), the accused has the exclusive right to make three decisions regarding the conduct of his case: "(a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; and (iii) whether to testify in his or her own behalf." See also, Robinson, The Perjury Dilemma in an Adversary System, 82 Dickinson L. Rev. 545, 554-61 (1978). A refusal to call a particular witness because of an obedience to ethical standards which prohibit the presentation of fabricated [**12] testimony does not constitute ineffective assistance of counsel. See, e.g., Martinez v. People, supra, quoting United States v. Gutterman, 147 F.2d 540 (2d Cir. 1945). See generally, Erickson, The Perjurious Defendant: A Proposed Solution to the Defense Lawyer's Conflicting Ethical Obligations to the Court and to His Client, 59 Den. L.J. 75 (1981); Erickson, Standards of Competency for Defense Counsel in a The defendant's constitutional right to the effective assistance of counsel does not include the right to require his lawyer to perpetrate a fraud on the court. While a lawyer must protect and defend the interests of his client with all his skill and energy, he must always comply with his ethical obligations to the court. State v. Henderson, 205 Kan. 231, 468 P.2d 136 (1970). The high ethical standards required of defense counsel are not inconsistent with the zealous representation which is guaranteed an accused. Instead, they are designed to exemplify the truth-finding goal of our legal system. Unless trial counsel is deficient in the competent and professional representation of the accused, no constitutional [**13] infirmity exists. See Valarde v. People, supra. See also, People v. Blalock, 197 Colo. 320, 592 P.2d 406 (1979), Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978) (Hufstettler, J., specifically concurring). An examination of the record in this case reveals no such deficiency. Defense counsel competently and zealously defended [*13] Schultheis despite the accusations of inadequacy and lack of preparation which the defendant made against his appointed counsel. We therefore conclude that the defendant was not deprived of his constitutional right to the effective assistance of counsel. C. Contrary to the court of appeals' decision, the foregoing analysis does not contemplate that a lawyer has an affirmative duty to withdraw from a case whenever his client desires to present perjured testimony through alibi witnesses. Regardless of the client's wishes, defense counsel must refuse to present the testimony of a witness that he knows is fabricated, and his continued role as defense counsel does not result in an ethical violation. When a serious disagreement arises between unable to dissuade his client from insisting that fabricated [**14] testimony be presented by a witness, counsel should request permission to withdraw from the case in accordance with the procedures set forth in part II of this opinion. 7 If the motion to withdraw is denied, however, he must continue to serve as defense counsel. So long as counsel performs competently as an advocate, the accused is represented effectively and the integrity of the adversary system of justice is not compromised. situation. We disagree with the court of appeals and conclude that, when the accused insists that counsel present fabricated testimony of a witness, counsel should not reveal to the trial judge the specific reasons for his motion to withdraw. In our view, the court of appeals also erred by imposing the requirement that the trial court grant a motion to withdraw; such a rule provides no safeguards against the wholesale manipulation of the judicial system by an unscrupulous defendant. II. 7 This procedure is consistent with DR 2- 110(C)(1)(c) of the Code of Professional Responsibility, which provides that a lawyer may request permission to withdraw when his client "insists that the lawyer pursue a course of conduct that is illegal or that is prohibited under the Disciplinary Rules." The court of appeals concluded that, in order to A. In part I of this opinion, we addressed [**16] the duties of defense counsel when he is unable to dissuade his client from insisting that fabricated testimony of a witness be presented. Even when counsel makes a motion to withdraw, however, the defendant is always entitled to an impartial trial judge, untainted by accusations that the defendant had insisted upon presenting fabricated testimony. Therefore, we hold that defense counsel, in a motion to withdraw, should never be required to cite the specific provisions of the Code of protect the confidentiality of privileged communications between defendant and counsel, a lawyer who seeks to withdraw from a case in which his client demands to present perjured testimony by a witness may not state the factual basis for [**15] the withdrawal. Instead, the court of appeals directed the lawyer to refer to the specific provisions of the Code of Professional Responsibility that prohibit the use of perjured testimony or false evidence, 8 and held that the trial court must grant the lawyer's motion to withdraw. 8 In this case, the court of appeals did not specify which rules would have been correct to cite. However, DR 7-102(A)(4) and DR 4-101 of the Code of Professional Professional Responsibility which prohibit the use of perjured testimony or false evidence. The court of appeals' rule is tantamount to a full disclosure to the court, since citing specific ethical provisions enables the court to determine that the factual basis for the motion to withdraw is the defendant's intention to present false alibi testimony. We do not approve of such a rule. Defense counsel should not, in any way, be required to divulge a privileged communication to the trial court during trial. See Code of Professional Responsibility, DR 4-101. [*14] When confronted with a client who insists upon presenting perjured testimony as to an alibi, counsel may only state, in the motion [**17] to withdraw, that he has an irreconcilable conflict with his client. An "irreconcilable conflict" may mean a conflict of interest, a conflict of personality, a conflict as to trial strategy, or a conflict regarding the presentation of false evidence. The integrity of the trial proceedings is thereby preserved. Any disagreement between counsel and the accused on a decision to be made before or during trial, however, may be the subject of postconviction proceedings questioning the effectiveness of the lawyer's performance. It is not sufficient to determine the matter solely on the strength of the memories of the lawyer and client, which are invariably in conflict if the issue arises. Therefore, although no record of disagreement is required for the trial judge, counsel should proceed with a request for a record out of the presence of the trial judge and the prosecutor if the court denies the motion to withdraw: "If a disagreement on significant matters of tactics or strategy arises between the lawyer and the client, the lawyer should make a record of the circumstances, the lawyer's advice and reasons, and the conclusion reached. The record should be made in a manner which [**18] protects the confidentiality of the lawyer-client relationship." ABA Defense Function Standards § 4-5.2(c). Appellate review of the private record, as well as the provisions of Crim. P. 35(c), which provides for postconviction review and relief, are adequate mechanisms to protect the accused against counsel's unwarranted judgment that the proposed testimony by a witness is false. In this case, we recognize that counsel, by wrongfully disclosing to the trial court the nature of his disagreement with Schultheis, did not follow the procedure which we recommend. We do not endorse counsel's comments to the trial court. In the discourse between the trial judge, defense counsel, and Schultheis, counsel was at first vague in describing his refusal to call the witnesses requested by the defendant. It was only after counsel requested the defendant's permission to reveal to the court the basis of his decision not to call the alibi witnesses that he stated his refusal to put on evidence he knew was fabricated. Counsel thereafter sought and received permission to make a private record to reveal the specific factual basis underlying the disagreement. The entire discourse was out [**19] of the presence of the jury. Although counsel is generally not permitted to disclose information imparted to him by the client or acquired during the professional relationship, we do not believe that, under the circumstances, there was a breach of the attorney-client privilege. Further, as discussed in part I of this opinion, counsel's conduct did not deprive the defendant of the effective assistance of counsel. B. The court of appeals also erred in requiring the trial court to grant a lawyer's motion to withdraw when counsel and the defendant disagree over the presentation of alibi testimony. Such a conclusion is replete with dire practical consequences. A mandatory withdrawal before trial may not be possible because the confrontation with the client does not occur until the time of trial, or because other counsel cannot be obtained without continuing the trial date. In addition, if each successive lawyer was faced with an ethical disagreement with the accused, mandatory withdrawal would always allow the defendant an unlimited number of continuances. This situation could ultimately result in a perpetual cycle of eleventh-hour motions to withdraw. 9 If the trial court was [**20] required to grant every motion to withdraw, new counsel might fail to recognize the problem of fabricated testimony by alibi witnesses, and false evidence [*15] would be presented to the court. Or, counsel may view his ethical obligation as requiring neither a withdrawal nor any indication that the problem of potential false evidence exists. We cannot sanction either result, for in both cases, fraud is committed upon the court. 9 The trial judge recognized these practical problems and stated, in denying defense counsel's motion to withdraw, that no matter who else he could have appointed, the same predicament would occur in the future. A decision as to whether counsel should be permitted to withdraw must lie within the sound discretion of the trial judge. As long as the trial court has a reasonable basis for believing that the lawyer-client relation has not deteriorated to the point where counsel is unable to give effective aid in the fair presentation of a defense, the court is justified in refusing [**21] to appoint new counsel. State v. Henderson, supra; People v. Williams, 2 Cal.3d 894, 471 P.2d 1008, 88 Cal. Rptr. 208 (1970). Therefore, a disagreement between defense counsel and the accused concerning counsel's refusal to call certain witnesses is not sufficient to require the trial judge to grant the motion to withdraw and replace defense counsel. See State v. Robinson, 290 N.C. 56, 224 S.E.2d 174 (1976); People v. Williams, supra. Under the circumstances, the denial of the motion to withdraw did not deprive the accused of the effective assistance of counsel. People v. Durham, 70 Cal.2d 171, 449 P.2d 198, 74 Cal. Rptr. 262 (1969). In making the decision whether to grant counsel permission to withdraw, the trial court must balance the need for the orderly administration of justice with the fact that an irreconcilable conflict exists between counsel and the accused. In doing so, the court must consider the timing of the motion, the inconvenience to witnesses, the period of time elapsed between the date of the alleged offense and trial, and the possibility that any new counsel will be confronted with the same irreconcilable conflict. The decision of the trial [**22] court to deny a motion to withdraw will not be disturbed absent a clear abuse of discretion. The primary responsibility of the court is the orderly administration of justice. See United States v. Jones, 512 F.2d 347 (9th Cir. 1975); United States v. McMann, 386 F.2d 611 (2d Cir. 1967), cert. denied, 390 U.S. 958, 19 L. Ed. 2d 1153, 88 S. Ct. 1049 (1967). Under the circumstances in this case, the trial court did not abuse its discretion by requiring counsel to remain as the defendant's advocate. Accordingly, we reverse the judgment of the court of appeals, and remand to the court of appeals with directions to affirm the defendant's conviction for first-degree murder.

Categories: Criminal Defense

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