Perjury in Our Family Courts: Family Lawyers Beware
It is no surprise that emotions run high in the family law arena, and litigants perceptions of incidents vary wildly. What happens, however, when a witness swears to "tell the truth, the whole truth, and nothing but the truth" and then lies?
Perjury in Our Family Courts: Family Lawyers BEWARE! by Aurora M. Maskall, Esq., and Robert P. Dickerson, Esq.
It is no surprise that emotions run high in the family law arena, and litigants perceptions of incidents vary wildly. What happens, however, when a witness swears to "tell the truth, the whole truth, and nothing but the truth" and then lies? Unfortunately, despite the fact that perjured testimony is offered everyday in our family courts, not much happens to the lying litigant. Not only does the opposing party have limited civil remedies available to "right the wrong," but history and the current policy of the Clark County District Attorneys Office tells us that the perjurer will not be criminally prosecuted. Moreover, our family court judges appear to be hesitant to exercise their contempt powers to put an end to the prevalence of perjury. But, family lawyers beware! While it is highly unlikely that anything will happen to your lying client unless, of course, our judges take a more aggressive role in counteracting the perjury you face a far greater risk of being disciplined by the State Bar or being criminally prosecuted for suborning your clients perjury.
Perjury a serious evil without a civil remedy
Except when authorized by statute, no civil action lies to recover damages caused by perjury or subornation of perjury. In Eikelberger v. Tolotti, 96 Nev. 525, 531, 611 P.2d 1086, 1090 (1980), the Nevada Supreme Court noted that "it is uniformly held that the giving of false testimony is not civilly actionable." Thus, a party injured by perjured testimony cannot bring a civil action against the opposing party or a witness who has offered perjured testimony, even if the perjury has affected the final judgment in the case.
Lying parties and their witnesses also are shielded from civil liability for the closely related torts of slander and libel for falsehoods committed during a judicial proceeding. The Restatement (First) of Torts § 588 (1938), states: "A witness is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding and as a part of a judicial proceeding in which he is testifying, if it has some relation thereto." This privilege is meant to encourage witnesses to speak freely, and without fear of civil liability. Our Nevada Supreme Court has held that
"...it is important to the administration of justice that full disclosure by a witness be not hampered by a possible future damage suit. Consequently, perjury is an offense against the public only, and subject only to the criminal law." Eikelberger v. Tolotti, 96 Nev. at 531.1
"Contempt of court" probably the only reasonable and viable alternative
It generally is recognized and well settled that perjury may be punishable as a contempt of court. See generally, 12 Am.Jur., Contempt, Section 17. In the divorce case of Crute v. Crute, 86 Ga.App. 96, 97, 70 S.E.2d 727, 728 (1952), the appellate court upheld the trial courts finding that the husband was in contempt of court for "testifying falsely" and for "deliberately attempting to mislead the court and conceal from the court evidence in the case." The appellate court correctly noted that "a witness who seeks to conceal the truth or to give evasive answers or to falsify or mislead the court is not acting respectfully to the court and his conduct is reprehensible," thus subjecting the witness to the courts inherent power to punish for contempt. Id. Similarly, our Nevada Supreme Court has recognized that "[t]he power of courts to punish for contempt and to maintain decency and dignity in their proceedings is inherent, and is as old as courts are old." Lamb v. Lamb, 83 Nev. 425, 428, 433 P.2d 265 (1967).
The fact that perjury also constitutes a crime for which the offender may be indicted does not prevent the act from being punished as contempt by the family court judge. Such multiple "consequences" stem from the fact that perjury has the double aspect of being an offense against both the state and the court before which the perjured testimony is offered. NRS 22.010 defines contempt as "[d]isobedience or resistance to any lawful writ, order, rule or process issued by the court or judge at chambers." As noted by the court in Russell v. Casebolt, 384 S.W.2d 548, 554 (Mo. 1964), a "witness may be cited for contempt and a hearing held, with appropriate punishment if justified; or, the matter may be referred to the prosecuting attorney of the county for appropriate criminal action, if that is found to be justified." Unfortunately, in Nevada, and more specifically in Clark County, there is little likelihood that any case referred to the District Attorneys office for a criminal perjury prosecution will be approved and prosecuted. During the past 20 years, only about four criminal perjury cases have been initiated by the Clark County District Attorneys Office. Of those four cases, one criminal defendant pleaded guilty and the three others proceeded to trial. Each of those three trials resulted in acquittal. As such, the current "general" policy of the Clark County District Attorneys Office is to not prosecute criminal perjury cases due to the offices belief that such cases have little, if any, jury appeal. The general consensus is that perjury is a difficult crime to prove and that juries, unfortunately, do not seem to consider perjury to be a serious offense.
Moreover, in light of the significant financial resources required to prosecute a criminal case, our local prosecutors prefer to use their limited resources to prosecute cases in which the likelihood of success is greater than that which history has shown with respect to perjury prosecutions. Since the inception of the family court in Clark County in 1993, at least two cases have been referred to the Clark County District Attorneys Office by the trial judge for criminal perjury prosecution. The District Attorneys office declined prosecution on both cases.
As such, it appears that the only viable alternative to counteract the perjury that occurs in our local family courts is through our family court judges themselves imposing appropriate punishment for contempt of court. The suggestion has been made that until our family court judges choose to "crack down" on the perjury that is prevalent in local divorce proceedings, such conduct will continue.
But, lawyers beware youre not so lucky when it comes to perjury prosecutions
Notwithstanding the current policy of the Clark County District Attorneys Office, there appear to be at least two reported cases in Nevada in which a criminal perjury prosecution has been initiated as a result of perjured testimony presented in a divorce case. Most noteworthy of these two cases is Ex Parte Sheldon, 44 Nev. 268, 193 P. 967 (1920), in which the attorney, and not the client, was prosecuted for subornation of perjury. The Nevada Supreme Court held that the attorney could be prosecuted for subornation of perjury for his alleged aiding and abetting a client to commit perjury in a divorce matter. The second reported case from our Nevada Supreme Court involving a perjury prosecution resulting from false testimony presented in a divorce case is Cosio v. State of Nevada, 106 Nev. 327, 793 P.2d 836 (1990). In Cosio, the defendant was convicted of perjury after he falsely testified before the divorce court. Interestingly, however, his conviction was reversed because the Nevada Supreme Court concluded that the trial court erred in not allowing the defendant to testify that he relied on the advice of his divorce attorney, and thus lacked the intent to commit the crime of perjury. This case should be instructive to all divorce practitioners when your client commits perjury, he/she no doubt will cast the blame upon you, the divorce lawyer.
NRCP 60(b)(2) offers another possible alternative
Fortunately, the party injured by such perjured testimony may have some redress for the harm caused by his or her spouses perjury in the divorce case. An injured party who was unable to successfully assert a contempt charge for the perjured testimony during the divorce proceeding, or who later discovers evidence of the perjury, may attack the judgment directly if the final judgment is the result of such perjured testimony.
Rule 60(b)(2) of the Nevada Rules of Civil Procedure provides an avenue for directly attacking the judgment. Rule 60(b) provides, in pertinent part:
"(b) Mistakes; inadvertence; excusable neglect; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party which would have theretofore justified a court in sustaining a collateral attack upon the judgment; . . . The motion shall be made within a reasonable time, and for reasons . . . (2) not more than six months after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court. The procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."
An excellent discussion as to how such an aggrieved party may rely upon NRCP 60(b)(2) to attack a judgment obtained by perjury is found in the following excerpt from the "Nevada Civil Practice Manual," Fourth Edition, § 2522, at page 499: "Up until 1981, Nevada case law recognized a distinction between extrinsic and intrinsic fraud. Extrinsic fraud was recognized as a basis for relief from a final judgment although intrinsic fraud was not. Numerous Nevada cases discussing the difference between extrinsic and intrinsic fraud no longer apply since the amendment in 1981 of Rule 60(b)(2) to allow relief on the basis of fraud whether heretofore denominated intrinsic or extrinsic.
The most important consequence of the amendment allowing relief in cases previously denominated intrinsic fraud is that a judgment can now be successfully attacked on the ground that it had been obtained by perjury." 11 Wright & Miller, Federal Practice & Procedure, Civil §2861, at 194 (1973) (emphasis added). The savings clause contained in Rule 60(b) provides that a party may file an independent action for relief from a judgment, order or proceeding for "fraud upon the court." In order to prevail on this ground, the burden is on the moving party to show by clear and convincing evidence that "an unconscionable plan or scheme... designed to improperly influence the court in its decision" had been perpetrated. Occhiuto v. Occhiuto, 97 Nev. 143, 146 n.2, 625 P.2d 568 (1981), quoting England v. Doyle, 281 F.2d 304, 309 (9th Cir. 1960). Thus, if the perjury is discovered within six months of the family courts entry of the divorce decree, the aggrieved party may file an appropriate motion with the family court seeking relief from the judgment pursuant to NRCP 60(b)(2). If the perjury is discovered after such six-month period, however, the aggrieved party must file an independent action seeking to be relieved of the judgment that was obtained as a result of his or her former spouses use of perjured testimony.
Ethical considerations: perjury a trap for the unwary lawyer
As an officer of the court, an attorney has a duty to ensure false evidence is not presented. The lawyer, however, also has a duty to his client to keep all attorney-client communications confidential. Usually, maintaining both these duties is not a problem. However, when a client decides to commit perjury, the lawyer is faced with the dilemma of reconciling these two conflicting interests.
The Model Rules of Professional Conduct, which have been adopted by the Nevada Supreme Court "as the rules of professional conduct for lawyers who practice in Nevada," provide that a lawyer "shall not reveal information relating to representation of a client unless the client consents after consultation." See SCR 150(1) and 156(1). However, "[a] lawyer may reveal such information to the extent that the lawyer reasonably believes necessary . . . to prevent or rectify the consequences of a clients criminal or fraudulent act in the commission of which the lawyers services have been used, but the lawyer shall, where practicable, first make reasonable effort to persuade the client to take corrective action." SCR 156(3)(a). The question often arises as to what an attorney ethically and legally must do if he knows his or her client intends to offer or has offered perjured testimony or falsified evidence to the court. In considering this issue, SCR 172 is instructive. SCR 172 provides:
Rule 172. Candor toward the tribunal:
A lawyer shall not knowingly:
make a false statement of material fact or law to a tribunal;
fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
The duties stated in subsection 1 continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 156.
A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." (emphasis added)
The mandatory language of SCR 172(1) presupposes that a lawyer will actually "know" when the clients testimony is false. The irony of this rule is that the lawyer is an advocate, and issues such as the veracity of a client are best left to the trier of fact. Nevertheless, when a lawyer believes a client intends to commit perjury, "the lawyer should seek to persuade the client that the evidence should not be offered, or, if it has been offered, that its false character should be revealed." (Model Rules of Professional Conduct, Rule 3.3, Comment 5). The permissive language of SCR 172(3) further strengthens the premise that the lawyer is in control of what evidence is to be offered to the court, and imposes a standard of "reasonable" belief, granting further discretion to the lawyer.
Most importantly, however, is the mandate set forth in SCR 172(2) which provides that the attorneys duties set forth in subsection 1 "apply even if compliance requires disclosure of information otherwise protected by Rule 156." Thus, it is apparent from our Supreme Court Rules that the Nevada Supreme Court has concluded that an attorneys ethical obligation to prevent perjured testimony from being presented to a court takes precedence over the attorneys obligation to "not reveal information relating to representation of a client unless the client consents after consultation." SCR 156(1).
Prosecution of perjury cases in the domestic law arena remains infrequent. In Nevada, such perjury prosecutions are virtually non-existent, and there is little likelihood that any criminal perjury prosecution will occur in the future unless, of course, the prosecution is against the divorce attorney for suborning perjury. Even more disturbing, however, is the fact that our family court judges appear to be reluctant to find a person who has presented perjured testimony to be in contempt of court. Perhaps our family court is lenient in this regard because the court understands the emotional stress and anguish a party in a divorce or family law proceeding experiences during the course of the proceedings, thus causing the court to rationalize that "bending" the truth is to be expected. Perhaps, too, it is the province of our family courts mantra that it is "a court of equity and not punishment." If this is, in fact, the philosophy and rationale of our family courts, we, as family law practitioners, must take it upon ourselves to urge the court to exercise its inherent power of contempt. Unless such contempt power is exercised, there is little doubt that perjury will continue to be prevalent within our family court system. Nevertheless, we as family law attorneys must recognize and understand that it is we who are at risk. The family law attorney should and must strive to maintain the integrity of our family court. Moreover, the family law attorney must recognize that, in all likelihood, he or she stands a far better chance of facing disciplinary action for a clients perjury than the client stands to be punished for committing the perjury. If we as family law practitioners take a proactive stand against the proffering of perjured testimony and falsified evidence in our cases, we no doubt can and will bring integrity into the family court system.
Robert P. Dickerson is a shareholder in the law firm of Dickerson, Dickerson, Consul & Pocker. Dickerson is a native Nevadan who has practiced law in Las Vegas for 23 years. He is past president of both the State Bar of Nevada and the Clark County Bar Association. During his distinguished career, he has practiced general civil and criminal litigation, and maintained a general real estate and transactional practice. Dickerson currently practices primarily in the areas of family law and real estate, and business/commercial transactions. Aurora Maskall joined the law firm of Dickerson, Dickerson, Consul & Pocker as an associate approximately one year ago. Maskall previously clerked for the Hon. Cynthia Dianne Steel in the Eighth Judicial District Court, Family Division. The associate came to Las Vegas from Washington, D.C., where she practiced criminal law through the Criminal Justice Act program, and consulted on criminal copyright and telecommunications issues with various organizations, including the Recording Industry Assocation of America and the American Publishers Association. She currently practices primarily in the area of family law.