(Based on The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2019-200.)

Because attorneys have a duty to vigorously represent their clients within the bounds of the law, they are entitled to resolve all doubts about the credibility of evidence in their client’s favor. (People v. McKenzie (1983) 34 Cal.3d 616, 631 [194 Cal.Rptr. 462]; People v. Crawford (1968) 259 Cal.App.2d 874 [66 Cal.Rptr. 527]; McCoy v. Court of Appeals of Wisconsin (1988) 486 U.S. 429, 444 [108 S.Ct. 1895].)

Legal Standard

“A lawyer shall not:

1. knowingly make a false statement of 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 knowingly misquote to a tribunal the language of a book, statute, decision or other authority; or
3. offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a 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.”

(Rules of Prof. Conduct, Rule 3.3(a); see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 795 [16 Cal.Rptr.3d 374].)

“Every attorney is guilty of a misdemeanor who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” (Bus. and Prof. Code, § 6128.)

Witness Perjury

“Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured.” (Penal Code, § 127.) Perjury is defined as testimony under oath which is “wilfully” false on a “material” matter. (Penal Code, § 118.) “Materiality” means a false statement that “could probably influence the outcome of the proceeding.” (People v. Rubio (2004) 121 Cal.App.4th 927, 933 [17 Cal.Rptr.3d 524].) It is well established in case law that “[a]n attorney who attempts to benefit his client through the use of perjured testimony may be subject to criminal prosecution… as well as severe disciplinary action.” (In re Branch (1969) 70 Cal.2d 200, 211 [74 Cal.Rptr. 238].)

“[I]n both civil and criminal matters, a party’s attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters.” (In re Horton (1991) 54 Cal.3d 82, 94, 102 [284 Cal.Rptr. 305].) Encompassed in this is the authority to control matters of ordinary trial strategy, such as which witnesses to call, the manner of cross-examination, what evidence to introduce, and whether to object to an opponent’s evidence. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [95 Cal.Rptr.3d 799].) However, a decision on any matter that will affect the client’s substantive rights is within the client’s sole authority. (Maddox v. City of Costa Mesa (2011) 193 Cal.App.4th 1098, 1105 [122 Cal.Rptr.3d 629].)

“If a lawyer knows the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered and, if unsuccessful, must refuse to offer the false evidence.” (Rules of Prof. Conduct, Rule 3.3, Comment 4.) Thus, an attorney may refuse to call a witness even though the client requests that the witness testify. (Nahhas v. Pacific Greyhound Lines (1961) 192 Cal.App.2d 145, 146 [13 Cal.Rptr. 299].)

“Although attorneys may not present evidence they know to be false or assist in perpetrating known frauds on the court, they may ethically present evidence that they suspect, but do not personally know, is false…. Presenting incredible evidence may raise difficult tactical decisions — if counsel finds evidence incredible, the fact finder may also — but, as long as counsel has no specific undisclosed factual knowledge of its falsity, it does not raise an ethical problem.” (People v. Bolton (2008) 166 Cal.App.4th 343, 357 [82 Cal.Rptr.3d 671].)

“Counsel in summing up a case are given wide latitude and may indulge in all fair arguments in favor of their client’s case.” (Risley v. Lenwell (1954) 129 Cal.App.2d 608, 659 [277 P.2d 897].) An attorney is also “entitled to argue his or her case vigorously and to argue all reasonable inferences from the evidence.” (Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 305 [112 Cal.Rptr.2d 861].)

The duty of candor does not override the duty of confidentiality. (People v. Johnson (1998) 62 Cal.App.4th 608, 623 [72 Cal.Rptr.2d 805].)