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Should court put limits on telling the truth?

By CURTIS J. SITOMER / May 23, 1985



VIRTUALLY lost in the Webb-Dotson recanted rape controversy is the issue of lawyer responsibility. As the smoke clears around this highly charged and somewhat bizarre case, perhaps these questions might be addressed: Did Cathleen Crowell Webb's legal counsel know she was lying (as she has since claimed she was) in 1977 when she originally charged that she was raped by Gary Dotson? If he did, did he have a responsibility to persuade her to tell the truth? And if she refused, should the attorney have blown the whistle on his client or, at the very least, resigned from the case?

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The same queries would be pertinent if Mrs. Webb's new counsel had reason to believe that her current story that the rape never occurred lacked veracity.

Illinois Gov. James R. Thompson played a Solomon-like role in resolving the issue -- at least for now -- by commuting Dotson's sentence to the six years already spent, while not tampering with the conviction. However, a further appeal in the courts may change that verdict.

The longstanding debate over whether a law yer has a greater responsibility to his client than to society in terms of bringing out the ``truth'' was partially -- if unsatisfactorily -- resolved in 1983 when the American Bar Association (ABA) recommended to the nation's lawyers a model legal ethics code.

However, the message was two-pronged. If a lawyer knew his client was about to commit a crime that might cause death or bodily injury, the lawyer has a duty to try to dissuade him or, if unsuccessful, disclose what he knows to authorities. However, the lawyer group seemed less motivated toward urging lawyers to expose clients' lies in cases involving possible business fraud or white-collar crime.

Since the ABA passed its ethics code, states have adapted it to their use in varying ways. Arizona, Florida, and New Jersey require lawyers to notify the court if they become aware of a client's perjury. The District of Columbia says it is an attorney's duty to try to persuade a client not to commit perjury. But effective representation is stressed -- even if such argument fails. Other jurisdictions would have a lawyer withdraw from a case without a stated reason if he believes his client is lying.

Uncharacteristically, the US Supreme Court has agreed to hear a case next fall involving lawyer ethics -- one that could affect existing state laws and help shape new ones.

The case involves a defendant who was on trial for murder. He had pleaded self-defense in the stabbing of a man in an argument over drugs. The defendant told his court-appointed attorney that he intended to make his plea more credible by testifying that he had seen ``something metallic'' (obviously a gun) in the hand of the man he killed. Earlier he had made no mention of a gun nor was one found at the scene of the crime.

The defendant's lawyer balked. He tried to persuade his client not to lie. He even threatened to withdraw from the case and tell the judge his reasons for doing so.

The client acquiesced. He testified truthfully at his trial and was subsequently convicted of second-degree murder. A state supreme court affirmed the conviction and commended the lawyer for acting in a ``highly ethical'' manner.

However, a US Circuit Court of Appeals panel reversed the decision. It said it was concerned that the client's constitutional right to effective counsel had been abridged. The lawyer's threatened withdrawal from the case, it ruled, constituted a violation of the defendant's Sixth Amendment right to effective counsel. Two constitutional issues were at stake, the court explained -- the right to testify and the right to have a lawyer.

Now the nation's highest tribunal will have the final say. The public will certainly be more interested in how the Supreme Court defines lawyer responsibility than in the resolution of this particular case.

Many in the legal community have been highly critical of how lawyers conduct themselves in and out of court. Chief Justice Warren Burger has accused some barristers of acting like ``hired guns,'' more interested in earning big fees than serving clients.

However, others say that if the high court opts too strongly for lawyer disclosure of clients' misdeeds or missayings, it could weaken the very fabric of the adversary system -- lawyer-client confidentiality and the right to a vigorous defense.

A Thursday column