Ronald Meltzer and the Continued Use of Perjury in Litigation
Unfortunately, the use of perjured or false testimony continues to be practiced to this very day, be it through deposition testimony, affidavits, or even testimony at trial. A careful practitioner must be aware of his or her clients’ proclivity for falsehoods and take steps to avoid suborning perjury. Moreover, attorneys should take steps to even avoid the acquiescence of perjured testimony.
In the recent matter of In re Meltzer, the New York State Appellate Division, First Judicial Department on December 3, 2015 issued a decision approving the resignation of an attorney who gave “instructions” to his client that were akin to suborning perjury. The relevant facts of Meltzer are that in preparing his client and his client’s friend for a criminal trial, the attorney suborned false testimony of the friend by instructing the friend to “down play” the number of times that the attorney and witness had met to prepare for trial in the event that the witness was questioned about those meetings under cross examination. When the witness subsequently testified falsely at trial the attorney did nothing to correct the false testimony, even though the attorney knew the testimony to be false.
Suborning perjury violates the New York State Rules of Professional Conduct and is a crime in and of itself pursuant to the New York State Penal law. Further, failing to take steps to correct testimony that the attorney knew to be false also violated the Rules of Professional Conduct.
It is incumbent upon legal counsel to be aware of the potential penalties for perjury and the suborning of perjury when preparing a witness for trial or even discovery.
How to Avoid Suborning Perjury
What can a defense attorney do under these circumstances? Counsel must be aware that there is a thin line between the advocacy of a client and a breach of the cannons of law. At no time should an attorney permit his or her client to lie. In order to avoid suborning perjury, the attorney should take all precautions to ensure that any affidavit drafted by the attorney is true and accurate and perform due diligence to ensure the accuracy of the witness’s proposed statement before executing the affidavit.
The insurance carrier likewise has a duty to make sure that it has clean hands so that it, too, is not found to have participated in a plan to coax false or perjured testimony from a witness. The potential savings under such a scenario may be heavily outweighed by the potential penalties, including criminal charges that could result from such conduct.
The moral of this story: honesty remains the best policy. Just ask Mr. Meltzer!