LAWYER-CLIENT CONFIDENTIALITY: RETHINKING THE TRILEMMA
The trilemma refers to three ethical obligations bearing on lawyerclient
confidentiality, all of which a lawyer cannot simultaneously obey
when faced with client perjury. A lawyer is required (1) to learn as much
as possible about a client’s case; (2) to inform the client of the lawyer’s obligation to keep information confidential; and (3) to reveal confidential information to the court if the lawyer knows that the client has committed perjury.
My view is that the lawyer cannot give effective assistance of counsel without knowing as much as possible about a client’s case, that clients will frequently withhold critical information from the lawyer unless the lawyer promises confidentiality, and that the lawyer should not then violate her promise of confidentiality if the client testifies perjuriously. Accordingly, the obligation that must be sacrificed is candor to the court regarding what the lawyer has learned from the client in confidence. In my experience, this is the position of an overwhelming number of criminal defense lawyers, and, as shown in the next Part, it is the traditional position of the American Bar Association (“ABA”).