(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].)
“A lawyer shall not:
(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.)
“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].)
(See Rules of Prof. Conduct, Rule 3.3 [Candor Toward the Tribunal].) There is no meeting of the minds as to all material terms. The court cannot enforce part of a settlement. While the court may, under certain circumstances, reject a settlement agreement as a whole, it may not enforce only part of it pursuant to Code of Civil Procedure section 664.6 and without the parties' mutual consent. (Leeman v.
Aug 21, 2020
Orange County, CA
(See Rules of Prof. Conduct, Rule 3.3 [Candor Toward the Tribunal].) Notwithstanding the gaps in Plaintiff’s counsel’s declaration and Plaintiff’s Opposition, the record does not support the imposition of the “severest” sanctions. (See Hartbrodt v.
Aug 14, 2020
Orange County, CA
According to Plaintiff, this conduct could constitute forgery under California Penal Code section 470, subordination of perjury under California Penal Code section 127, and the federal crime of wire fraud under Title 18 of the United States Code section 1343. (Id. at p. 8:2-11.) Second, Plaintiff asserts that Defendants’ counsel’s conduct of filing the ex parte application seeking a continuance and not disclosing that Defendants’ counsel signed Dr.
Apr 03, 2019
Los Angeles County, CA
According to Plaintiff, this conduct could constitute forgery under California Penal Code section 470, subordination of perjury under California Penal Code section 127, and the federal crime of wire fraud under Title 18 of the United States Code section 1343. (Id. at p. 8:2-11.) Second, Plaintiff asserts that Defendants’ counsel’s conduct of filing the ex parte application seeking a continuance and not disclosing that Defendants’ counsel signed Dr.
Apr 03, 2019
Los Angeles County, CA
See Rules of Prof. Conduct, rule 3.3; see also Bus. & Prof. Code § 6068(d). The Court specifically informed plaintiff's counsel that plaintiff's Notice of Ruling as to the 11/2/18 hearing was inaccurate. ROA # 27. The Court further made clear that to the extent plaintiff's motion for judgment on the pleading relied entirely on the ruling on the requests for admission, it would not be granted. Id.
Feb 28, 2019
Collections
Collections
San Diego County, CA
See Rules of Prof. Conduct, rule 3.3; see also Bus. & Prof. Code § 6068(d). The Court specifically informed plaintiff's counsel that plaintiff's Notice of Ruling as to the 11/2/18 hearing was inaccurate. ROA # 27. The Court further made clear that to the extent plaintiff's motion for judgment on the pleading relied entirely on the ruling on the requests for admission, it would not be granted. Id.
Feb 28, 2019
Collections
Collections
San Diego County, CA
The sixth cause of action is for violation of Penal Code §127 (subornation of perjury). "Subornation of perjury, being a crime and not a tort, is subject to criminal prosecution brought in the interest of the state and not to redress a private wrong." Legg v. Ford (1960) 185 Cal.App.2d 534, 543. This cause of action fails to allege facts to constitute a cause of action. Plaintiff has failed to offer any additional facts that would support a claim against these defendants.
Jan 05, 2017
Other
Intellectual Property
San Diego County, CA
The sixth cause of action is for violation of Penal Code §127 (subornation of perjury). "Subornation of perjury, being a crime and not a tort, is subject to criminal prosecution brought in the interest of the state and not to redress a private wrong." Legg v. Ford (1960) 185 Cal.App.2d 534, 543. This cause of action fails to allege facts to constitute a cause of action. Plaintiff has failed to offer any additional facts that would support a claim against these defendants.
Jan 05, 2017
Other
Intellectual Property
San Diego County, CA
The sixth cause of action is for violation of Penal Code §127 (subornation of perjury). "Subornation of perjury, being a crime and not a tort, is subject to criminal prosecution brought in the interest of the state and not to redress a private wrong." Legg v. Ford (1960) 185 Cal.App.2d 534, 543. This cause of action fails to allege facts to constitute a cause of action. Plaintiff has failed to offer any additional facts that would support a claim against these defendants.
Jan 05, 2017
Other
Intellectual Property
San Diego County, CA
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