Case Study 1: The Defense Attorney’s Dilemma

• Undermining the Justice System: The adversarial system relies on the honest presentation of facts. If attorneys were permitted to present known falsehoods, the truth-seeking function of the courts would be severely compromised.

What other options does Sarah have that align with legal ethics?

Sarah has several ethically sound options:

1. Attempt to Dissuade James: Sarah's first step should be to strongly advise James against presenting a false alibi. She should explain to him:

   • The ethical and legal ramifications of perjury.
   • How presenting a false alibi can damage his credibility with the judge and jury, even if the prosecution doesn't directly disprove it.
   • That she cannot ethically present evidence she knows to be false.
   • That there may be other defense strategies they can explore that do not involve perjury.

2. Refuse to Present the False Alibi Directly: Sarah can inform James that while she will vigorously defend him, her ethical obligations prevent her from presenting the false alibi as fact. She can explain that she can still argue reasonable doubt based on the prosecution's evidence or explore other potential defenses that are truthful.

3. Limit Her Presentation: Sarah can present James's testimony, allowing him to state his alibi under oath. However, she cannot affirmatively argue the truthfulness of the alibi if she knows it to be false. She cannot introduce corroborating evidence that she knows to be fabricated. Her questioning of James regarding the alibi should be carefully phrased to avoid directly endorsing the falsehood.

4. Seek Guidance from an Ethics Hotline or Committee: If Sarah is unsure about the best course of action, she can confidentially consult with her local or national bar association's ethics hotline or committee. They can provide guidance on how to navigate this specific situation while adhering to ethical rules.

5. Withdraw from Representation: As a last resort, if James insists on presenting the false alibi and Sarah believes she cannot effectively and ethically represent him under those circumstances, she can seek to withdraw from the case. However, she would need to obtain permission from the court to do so, and the timing of her withdrawal could have implications for James's ability to find new counsel. When seeking to withdraw, Sarah must be careful not to reveal James's confidential confession to the court, stating only that there has been an irreconcilable difference that prevents her from effectively representing him ethically.

How can she balance her duty to defend James while maintaining professional integrity?

Sarah can balance these duties by:

• Zealously Advocating within Ethical Boundaries: Her duty to defend James requires her to be a zealous advocate on his behalf. However, this advocacy must always remain within the bounds of the law and ethical rules. She can still challenge the prosecution's evidence, cross-examine witnesses, and argue for reasonable doubt without resorting to falsehoods.
• Focusing on the Prosecution's Burden of Proof: The prosecution bears the burden of proving James's guilt beyond a reasonable doubt. Sarah can focus her defense on highlighting weaknesses in the prosecution's case, inconsistencies in their evidence, or alternative interpretations of the facts that do not rely on the false alibi.
• Maintaining Confidentiality: Sarah must continue to uphold her duty of confidentiality regarding James's confession. Her decision not to present the false alibi should be based on her ethical obligations, not on revealing his confession.
• Clear Communication with James: Open and honest communication with James about her ethical limitations is crucial. While she cannot reveal his confession, she can clearly explain why she cannot present the false alibi and discuss alternative defense strategies.

Identify the ethical issue present in the case.

The primary ethical issue is the conflict between the attorney's duty of confidentiality to the client and the attorney's duty of candor to the court and professional integrity, specifically the prohibition against presenting false evidence.

Determine the possible courses of action the legal professional can take.

1. Agree to present the false alibi.
2. Attempt to dissuade James from presenting the false alibi.
3. Refuse to present the false alibi directly but allow James to testify to it.
4. Limit her presentation regarding the alibi, avoiding direct endorsement of its truthfulness.
5. Seek guidance from an ethics body.
6. Withdraw from representation.

Evaluate the consequences of each action.

1. Agree to present the false alibi:

   • Consequences for Sarah: Severe ethical violation, potential disciplinary action (suspension or disbarment), potential criminal charges (obstruction of justice, suborning perjury), damage to reputation and career.
   • Consequences for James: Perjury charges if the alibi is proven false, potential negative impact on sentencing if convicted of the robbery, erosion of trust with Sarah (if he understands the ethical implications).
   • Consequences for the Justice System: Undermines the integrity of the court and the truth-seeking process.

2. Attempt to dissuade James:

   • Consequences for Sarah: Fulfills ethical duty to advise client honestly. May be successful in preventing perjury.
   • Consequences for James: May reconsider presenting the false alibi, potentially leading to a more ethical defense strategy. May become angry and seek new counsel.
   • Consequences for the Justice System: Promotes honesty and integrity in the legal process.

3. Refuse to present the false alibi directly but allow James to testify to it:

   • Consequences for Sarah: Adheres to her duty not to present false evidence directly. May still be seen as implicitly supporting perjury, raising ethical concerns. Could damage her relationship with James.
   • Consequences for James: Can present his alibi, but without Sarah's direct endorsement, it may be less persuasive. May still face perjury charges if disproven.
   • Consequences for the Justice System: Less egregious than Sarah directly presenting the false alibi, but still problematic as it allows false testimony in court.

4. Limit her presentation regarding the alibi, avoiding direct endorsement of its truthfulness:

   • Consequences for Sarah: Likely the most ethically sound approach if dissuasion fails and withdrawal is not immediately possible. Allows James to speak but prevents Sarah from actively misleading the court. May strain the attorney-client relationship.
   • Consequences for James: Can present his alibi, but Sarah's lack of direct support may be evident.
   • Consequences for the Justice System: Upholds Sarah's duty of candor while still allowing the client to be heard.

5. Seek guidance from an ethics body:

   • Consequences for Sarah: Provides clarity on her ethical obligations and the best course of action in her jurisdiction. Demonstrates a commitment to ethical practice.
   • Consequences for James: May delay the case slightly but ultimately leads to a more ethically sound approach.
   • Consequences for the Justice System: Ensures adherence to legal ethics standards.

6. Withdraw from representation:

   • Consequences for Sarah: Avoids directly participating in the presentation of false evidence. May damage her relationship with James and potentially leave him in a difficult position to find new counsel, especially close to trial.
   • Consequences for James: Will need to find a new lawyer, which may be challenging and could prejudice his defense. The court may inquire about the reasons for withdrawal (though Sarah must be careful not to reveal confidential information).
   • Consequences for the Justice System: Can disrupt the proceedings but ultimately upholds the integrity of the court by preventing an attorney from presenting known falsehoods.

Make a decision on what they believe is the most ethical choice and justify their reasoning using legal ethics principles.

The most ethical course of action for Sarah is to firmly refuse to present the false alibi directly and to vigorously attempt to dissuade James from presenting it himself. If James insists, Sarah should limit her presentation to allowing James to testify, without Sarah affirmatively arguing the truthfulness of the alibi or presenting corroborating evidence she knows to be false. Seeking guidance from an ethics body is also a prudent step.

Justification using legal ethics principles:

This decision is based on the fundamental duty of candor to the court, as outlined in Rule 3.3 of the ABA Model Rules (and similar provisions in most legal ethics codes). This duty overrides the duty of zealous advocacy when the advocacy would require presenting false evidence. An attorney's role is to advocate for their client within the bounds of the law and ethical rules, not to facilitate perjury or mislead the court.

While Sarah has a duty of confidentiality to James, this duty does not extend to assisting him in committing a crime or perpetrating a fraud on the court. Her refusal to present the false alibi is not a breach of confidentiality; rather, it is an adherence to her ethical obligations as an officer of the court.

Withdrawing from representation should be considered if James remains insistent on the false alibi and Sarah believes her continued representation would inevitably lead to her being complicit in his perjury or prevent her from providing an effective and ethical defense on other grounds. However, withdrawal should be a last resort, as it can prejudice the client.

By prioritizing her duty of candor and professional integrity, Sarah upholds the ethical standards of the legal profession and contributes to the fair administration of justice. She can still zealously defend James by focusing on the prosecution's case and exploring truthful alternative defense strategies.

This scenario presents a classic and challenging ethical dilemma for a defense attorney, pitting the duty of confidentiality against the duty to the court and professional integrity.

Should Sarah agree to present the false alibi, knowing it is untrue? Why or why not?

No, Sarah should absolutely not agree to present the false alibi, knowing it is untrue. Doing so would be a serious breach of legal ethics and could have severe consequences for Sarah. Here's why:

• Violation of Duty to the Court: Attorneys have a fundamental duty of candor to the court. Presenting false evidence, including a fabricated alibi, directly undermines the integrity of the judicial system. Rule 3.3 of the American Bar Association (ABA) Model Rules of Professional Conduct, titled "Candor Toward the Tribunal," explicitly prohibits a lawyer from knowingly offering evidence that the lawyer knows to be false. While legal ethics rules in Kenya may differ in specifics, the underlying principle of honesty to the court is universally held in legal professional standards.
• Violation of Professional Integrity: An attorney's reputation and professional integrity are paramount. Knowingly presenting false evidence would be a profound ethical lapse, damaging Sarah's credibility and potentially leading to disciplinary action by the bar association, including suspension or disbarment.
• Facilitating Perjury: By presenting a false alibi that she knows to be untrue, Sarah would be actively facilitating her client's perjury, which is a crime.