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[confidentiality]

Problem pp. 276-7 Client insists on testifying to alibi w/o corroboration, prosecution witness contradicts you are “convinced” that alibi is false – is that a sufficient basis for preventing its use? MRPC 3.3(a)(3), N. 1 p. 285, and Bartee , p. 283

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[confidentiality]

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  1. Problem pp. 276-7 • Client insists on testifying to alibi w/o corroboration, prosecution witness contradicts • you are “convinced” that alibi is false – is that a sufficient basis for preventing its use? MRPC 3.3(a)(3), N. 1 p. 285, and Bartee, p. 283 • Can you simply withdraw? What do you say to the judge in requesting leave? • If you can’t withdraw, how do you handle client’s testimony? C. Protecting the courts: client perjury [confidentiality]

  2. Std. of proof for lawyer’s refusal to offer crim D’s testimony • MRPC 3.3(a)(3) • lawyer knows it to be false: shall not offer • 1.0(f): “know” = “actual knowledge” • lawyer “reasonably believes” it is false: permission to refuse, other than a crim D’s • Bartee: “good faith determination”: same as “reasonable belief”, no? • Iowa: “convinced with good cause” – same as “reasonable belief”? It said it was “having compelling reasons” and recited the evidence, all supporting lawyer • Nix: doesn’t announce standard, treats falsity as given, based on post-conviction hearing • prevailing view: lawyer needs “firm factual basis”

  3. Problem pp. 276 c’t’d • After you think you have the client persuaded to abandon the alibi, he unexpectedly blurts it out on the stand • what do you do now? • Assume instead that the client insisted, and you have withdrawn w/ leave of ct; judge orders new trial, you happen to hear client testify to the alibi • what do you do now? • does the “remedial measures” obligation apply after withdrawal?

  4. Problem pp. 276-7 c’t’d • You conclude that client is sincere and not demonstrably false, and proceed to offer his alibi; he is acquitted; he then later admits that it was false • What do you do now? • There is also a civil case against the client which proceeded after acquittal, and client repeats the alibi • are your options different in the civil case?

  5. D. PROTECTING THE ATTORNEY: SELF-DEFENSE • Problem p. 292 • Can Cicero disclose his knowledge about the client’s transactions in which his work was used, to defend against the charge of complicity? • to the bank? • to the prosecutor? • Could he go to the prosecutor at the same time as he goes to the bank?

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