And Nothing But the Truth

By Alain L. Sanders.

It is the ethical nightmare dreaded most by criminal-defense attorneys, and it occurs all too often. A client wants to take the stand with a good alibi, but his lawyer strongly suspects the story is a fabrication. Should the attorney look the other way and let the testimony go forward? Miami Lawyer Ellis Rubin answered no, and last week his response landed him in the Dade County jail.

Rubin's troubles began last year after he volunteered to defend Russell Sanborn, 26, a plumber accused of fatally stabbing an 18-year-old woman. On the morning of the trial, with witnesses waiting and jury selection about to begin, Rubin asked to be excused from the case. Carefully mincing words in order to shield confidential conversations with his client, he says, he intimated to Judge Sidney Shapiro that Sanborn planned to lie on the stand. Sanborn, recalls Rubin, had "told me what he wanted to do, what he wanted to say, and what he wanted me to do and say." Shapiro refused Rubin's request, ordering him to proceed with the case. The judge cited the lapse of time since the commission of the crime, the inconvenience to witnesses, Sanborn's rejection of three previous court-appointed defenders and the possibility that "any new counsel will be confronted with the same conflict."

When Rubin appealed, a Florida appellate court backed up Judge Shapiro. The court acknowledged the "serious dilemma" posed by Rubin's responsibility to his client and his conflicting duty to protect the integrity of the judicial system. But it agreed with Shapiro's decision not to let Rubin walk away from the case. Its proposed solution: Rubin could allow the "defendant to take the stand and deliver his statement in narrative form," decline to "elicit the perjurious testimony by questioning," and refuse to "argue the false testimony during closing argument." Following these guidelines, the court assured Rubin, would fulfill his ethical obligations while giving his client all the effective assistance to which he was entitled.

Unpersuaded, Rubin continued to resist defending Sanborn. "To order any attorney to sit and watch with apparent approval while his client commits forbidden acts to a jury does nothing less than order the lawyer to be a knowing instrument of totally unethical and dishonest conduct," he protested. "Silence here is participation; it is cooperation with evil." Judge Shapiro held Rubin in criminal contempt and sentenced him to 30 days. Fully prepared, with underwear and shaving kit stuffed in his briefcase, Rubin last week heard Shapiro pack him off to jail. Undaunted, the lawyer arranged for a habeas corpus petition to be filed with the Florida Supreme Court. Shortly thereafter, he was released on his own recognizance.

Rubin's dilemma has dogged lawyers and courts since the beginnings of the legal profession. "It is an unchallenged rule of professional ethics that a lawyer may not put on a witness who he knows is going to lie," explains Law Professor Phillip Johnson of the University of California, Berkeley. When the lying witness is the attorney's own client, however, the rule runs smack into another fundamental ethical rule -- a lawyer's obligation to protect the confidentiality of his client's conversations. Legal scholars have tilted back and forth over the issue. The currently prevailing view, endorsed by the American Bar Association, argues that the attorney should be required to blow the whistle on the client if he cannot persuade him to tell the truth.

Typically, a lawyer will attempt to drop the client, as Rubin did. Sometimes the lawyer may warn the judge outright of the perjury. A third alternative is the one suggested to Rubin by the Florida appeals court: to stand mute while the defendant narrates his story unaided, a solution rejected by the A.B.A. but permitted in some states. For the lawyer who decides to part from a client, says Hofstra Law Professor Monroe Freedman, "the point of no return is when you are so close to trial that the judge is not going to grant a motion to withdraw." That was Rubin's plight when, on the eve of Sanborn's trial, he learned what he calls a "new version of what happened."

Although the irresolvable nature of Rubin's conflict elicits sympathy in the legal community, some colleagues fault the Miami lawyer for what they regard as his strident insistence on pulling out of the case and disobeying judges. William Surowiec, one of Sanborn's previous lawyers, wonders if the courts could have taken any other position. "What if a person, in an effort to continuously avoid going on trial when the trial date approaches, puts the lawyer in this situation?" he asks. "You would have a defendant who could manipulate the system by doing this to one attorney after another." Henry Harnage, president of the Dade County Bar Association, stresses the importance of following judicial marching orders. Says he: "It's a lawyer's duty to act in accordance with the rule of law as pronounced by the courts. Otherwise, we would have anarchy."

Rubin remains defiant. "When enough lawyers begin withdrawing from cases instead of promoting falsity, perjury and fraud," he says, "the sooner faith in the criminal-justice system will begin to be restored." Rubin, 61, has never shied from controversy. In 1977 he made headlines when he unsuccessfully sought to have a jury acquit Teenage Killer Ronald Zamora on the ground that "subliminal TV intoxication" had diminished his client's sense of right and wrong. He has defended Watergate burglars, championed Cuban refugee causes and in 1978 even staved off a disbarment move for allegedly neglecting several clients' cases. Now his license to practice may be at risk again.

/ His former client, meanwhile, may have plenty of time to ponder what might have been the wisest trial strategy. Earlier this year, Sanborn was convicted and sentenced to life, after a fifth court-appointed attorney put him on the stand to testify that he was not the man the victim's mother had seen at the murder scene. Sanborn's fate will strike many legal observers as unsurprising. Says Berkeley's Johnson: "A defendant who cannot convince his own attorney is unlikely to be a very persuasive witness."

With reporting by Charles Pelton/San Francisco and Andy Taylor/Miami