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April 5, 2007

By: Joel Cohen

To even raise this question (albeit in a legal publication that the lay public will never see), that is, whether a lawyer can legally and ethically offer testimony by his client that the lawyer simply does not believe, may give weight to the public’s perception of the legal profession as impervious to truth.

The masses would probably even be appalled at the lawyer considering such testimony where the client has done nothing to hint to his counsel that the client’s version is untruthful—such as a wink, a nod or constantly changing the recollection. (We deal in this piece with a lawyer’s plain disbelief based on available countervailing evidence or the senselessness of the story.)

Put differently: Are lawyers simply agnostic regarding truth? Should they be? May they flatly ignore their own personal perception of the “truth,” that is, unless, for example, the client has absolutely communicated that, “I want you to pursue my case by presenting my facts, including my testimony, as such and such, even though I have all but confided to you that the facts are otherwise”?

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