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What kind of accountability is the attorney subject to?

JAS
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    In the U.S., this depends on trading off an attorney's duty of confidentiality with the duty of candor to the tribunal. Jurisdictions have different rules about how this is to be done, but it often comes down to whether there is a requirement for the attorney to take reasonable remedial measures. – Pat W. Dec 23 '18 at 20:49

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Taking Washington state as a representative example, the State Bar Act empowers the board of governors of the state bar association to set rules and penalties for the practice of law. This includes the power to disbar a member, and there are specific rules (2.48.220) pertaining to suspension and disbarment, which includes (11) Violation of the ethics of the profession. 2.48.230 then says that "The code of ethics of the American Bar Association shall be the standard of ethics for the members of the bar of this state".

ABA rule 3.3(b) states that

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

If an attorney knows (not just thinks, actually knows) that the testimony is perjurious, he should persuade the client to not do so, or should seek to withdraw from the case. The ABA guidance on this (p. 9) observes that an approach sanction by some courts is

to allow the client’s testimony under the narrative approach (i.e., allowing the client to narrate instead of asking any questions). Lawyers who take this approach should not adopt or rely on any perjured testimony later in the trial.

user6726
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I will assume that you refer to some jurisdiction in the U.S. My answer is purely theoretical, in part because judges give lawyers too much leeway for acts which are in furtherance of the obstruction of justice.

What kind of accountability is the attorney subject to?

That could warrant sanctions against him for partaking in the concealment --or assistance thereto-- of "material having potential evidentiary value" (see Rule 8.4(a) of Michigan Rules of "Professional" Conduct, double quotes added). Any disciplinary sanctions this might elicit is totally independent of the litigation where the misconduct occurred.

Regarding the underlying litigation, the misconduct might defeat the attorney-client privilege on grounds of the crime-fraud exception to that privilege. Additionally, the opposing party may want to consider a motion seeking the disqualification of the attorney from the case, but I am not aware of whether this is pursued/achieved.

It is noteworthy, though, that the confidentiality of attorney-client communications makes it very difficult to prove that the attorney knew that his client was committing perjury. You can also expect from the lawyer a repertoire of vexatious allegations to deny his abetting of perjury.

Iñaki Viggers
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  • Thanks for your kind reply. In this case, it was a divorce action and the party in question lied to the court and her attorney knew it by an email that admitted to the terms and conditions of a partnership agreement. – JAS Dec 25 '18 at 00:52
  • @JAS Depending on its contents, that email might be an instrumental and decisive proof. While you decide how to proceed, you should promptly send that attorney a written request (by email and by certified mail) for preservation of records (properly identifying the email at issue). The attorney would have to produce the email at issue when he gets subpoenaed by you and/or by the disciplinary agency of the jurisdiction in which he is licensed to practice. Good luck there. – Iñaki Viggers Dec 25 '18 at 13:55
  • I am concerned that if I did that, he may be alerted that I intend to hold him accountable and he may destroy his copy of the document. As I was cc'd on it, I assume my copy would be adequate proof of the facts. Yes? – JAS Dec 26 '18 at 21:33
  • @JAS The request for "preservation of records" is intended to dissuade him from destroying the evidence lest he'd be subjected to repercussions such as spoliation of evidence and a [finding of] adverse inference. Without your request, he might avail himself of both (1) alleging (perhaps falsely) his inability to produce the email, and (2) disputing the authenticity/veracity of your copy. The latter item might not conclusively defeat your position (or the disciplinary agency's scrutiny), but it will be a possible [and avoidable] obstacle nonetheless. – Iñaki Viggers Dec 27 '18 at 00:09