Brown v. Commonwealth

226 S.W.3d 74, 2007 Ky. LEXIS 126, 2007 WL 1790633

• Court: Kentucky Supreme Court
• Decided: June 21, 2007
• Docket: 2005-SC-000078-DG
• Status: Published

Opinions

Opinion of the Court by

Justice NOBLE.

Appellant Karlos Brown was convicted of possession of a controlled substance in the first degree, operating a motor vehicle on a learner’s permit without a licensed operator, and being a persistent felony offender in the first degree. He was sentenced to eighteen years’ imprisonment. Prior to the presentation of the defense’s case, defense counsel told the trial court he had an ethical conflict with his client and implied that his client intended to offer perjured testimony. Defense counsel was then allowed to withdraw and leave the courtroom while his client testified by way of a narrative statement, was cross-examined by the prosecution, and made his own closing statement. The Court of Appeals affirmed the conviction. Despite the ethical dilemma that defense counsel faced, because his withdrawal and exit from the courtroom amounted to a denial of Appellant’s right to counsel, the judgment of the Court of Appeals is reversed.

I. Background

The trial in this case progressed normally until the trial court took a break before the cross-examination of a witness, Officer King. The prosecutors and defense counsel approached the bench after the break, and defense counsel informed the court that after several discussions with his client, he had concluded that a conflict had arisen which he wanted to address to the court outside the presence of the prosecution. The court allowed the ex parte discussion, during which defense counsel informed the court that the Appellant wanted to present through his testimony a theory that was not consistent with counsel’s investigation of the case. Counsel told the court that his client wanted to testify, and had the right to do so, but that counsel felt his ethical limitations created a conflict with the client. He stated that he did not believe he could deliver his planned opening statement or elicit the testimony Appellant now wanted to give.

The trial court and defense counsel then took a break to consult the Rules of Professional Conduct, specifically Rule 8.B¹ and its commentary. On returning, they again conferred on the record but outside the presence of the prosecutors on possible options for proceeding. Appellant was brought to the bench, and the trial court conducted a lengthy and thorough colloquy with him, setting forth the situation and presenting options, and directing him to consult further with his attorney before making a final decision on how he was going to proceed. The court did, however, at one point tell Appellant and his counsel that, in addition to allowing Appellant to make a limited narrative statement of his own testimony and a closing argument, Appellant could choose to have counsel remain in the courtroom or to excuse counsel, who would then leave the courtroom. Defense counsel offered to cross-examine the final two prosecution witnesses and informed the court that he would then be stepping out of the courtroom. On hearing this, Appellant told the court that counsel could remain, but the court said that counsel did not want to do that. The court also asked Appellant if he wanted her to explain to the jury that he would be representing himself from that point forward, and Appellant told the court she did not have to tell the jury anything. Defense counsel indicated that he had discussed with his client that it might make things worse if he remained seated at counsel table while his client proceeded.

At no point during these discussions were specific statements as to the nature of the alleged perjury put on the record. In fact, the most that was disclosed was that Appellant was prepared to testify in a manner inconsistent with defense counsel’s investigation, and that he was about to proceed on a theory of the case that was not in his best interest. The trial court, however, appears to have read these disclosures as implying that Appellant was set to commit perjury, as she repeatedly informed Appellant of the dangers of untruthful testimony and how it created a conflict with his attorney.

After the prosecutors completed their case, they and defense counsel approached the bench and made motions. Defense counsel then shook hands with the prosecutors and left the courtroom, but remained on call nearby. The trial court determined that if there were a guilty verdict, he would return for the sentencing phase because the Appellant’s testimony would no longer matter. The court then told the jury that the defendant had chosen to represent himself from that point forward.

Appellant then testified in narrative fashion to his version of events and was cross-examined by the prosecution. He was the only defense witness. He gave his own closing argument, and was found guilty by the jury. Defense counsel returned and represented Appellant in the sentencing phase of the trial. The trial court subsequently entered a judgment of conviction and sentence of imprisonment.

On direct appeal, the Court of Appeals affirmed Appellant’s conviction, holding that he had waived his right to counsel when he proceeded against his attorney’s advice, and that his attorney had acted properly in not assisting him to present false testimony. This appeal followed on a grant of discretionary review.

Appellant now argues that he was unconstitutionally forced to proceed without counsel during his testimony and in closing argument. He also claims he was prevented from adequately impeaching a prosecution witness, Officer King, to show bias.

II. Analysis

An attorney in circumstances such as these finds herself trying to balance the client’s constitutional rights and the duty to keep the client’s confidences with the duty of candor to the court. When the situation arises during trial, as it did in this case, determining the correct course of action is difficult, to say the least. Of equal difficulty is the trial judge’s decision on how to proceed once the problem is revealed. Fortunately, the scenario presented by this case does not happen frequently, but this also means that the correct procedures are not well-settled by court decisions.

Under Rule 3.3,² a lawyer is prohibited from offering evidence known to be false, may refuse to offer evidence that she reasonably believes to be false, and shall inform the tribunal of all material facts known to her so that the tribunal can make an informed decision whether the facts are adverse. The plain language of this rule contemplates that a lawyer will not advance false testimony of any witness, and that she will inform the court if such testimony is imminent and what facts support that belief. However, Rule 1.6³ creates a duty of confidentiality that prohibits a lawyer from revealing information related to the representation of a client. Moreover, the client has a right to testify in his own defense and a right to counsel. This creates an apparent conflict when an attorney knows that a client intends to offer false testimony. (No such conflict exists when the witness is not a client.)

Despite the tension between Rules 1.6 and 3.3 and the rights to testify and to counsel, when the false testimony involves the client, Rule 3.3(b) requires disclosure, even if otherwise protected by Rule 1.6. As the Commentary to Rule 1.6 points out, the duty of confidentiality is not absolute and other provisions of the Rules of Professional Conduct, such as Rule 3.3, require a lawyer to disclose information relating to the representation in some circumstances.

When a lawyer determines that her client is about to offer false testimony, all sources agree that the lawyer should first seek to persuade the client that such evidence should not be offered. Sometimes this is successful, and any conflict is resolved. There is no duty to inform the court of the problem in such a situation.

When the client is adamant about proceeding, however, the lawyer’s dilemma arises. In civil cases, the general rule is that the deception must be disclosed to the court to avoid having the lawyer coerced into being a party to fraud on the court. But in a criminal case, as we have here, other rights of the accused are also impacted, such as the right to counsel, the right to testify, and the right not to incriminate oneself.

There are substantially different opinions on how a lawyer should proceed when she knows or has reason to believe that a criminal defendant is about to commit perjury and the client insists on testifying. If the lawyer knows before trial, she may usually be allowed to withdraw without revealing the specifics of the conflict. But if the trial is imminent, or in progress, as here, there are problems with any course of action.

If the lawyer attempts to address the situation, this may increase the likelihood that the client will be convicted or charged subsequently with perjury. By informing the court, the lawyer brings a third party into the equation who must make rulings in regard to the disclosure. The effect of those rulings may be to tip off the prosecution that perjury is about to be committed, or to cause the jury to suspect that the client is lying, both of which are prejudicial to the client and may not be correct. If the attorney is to proceed in this manner, she must then determine how much to tell the court, in order to ensure that these steps are taken with good reason. In contrast, failure to inform the court may lead the lawyer to at least passively assist in deception of the tribunal, which could subsequently lead to disciplinary charges or criminal complicity charges against the lawyer. See KRS 502.080 (liability for the conduct of another through complicity).

Some believe that the lawyer should be entirely excused from revealing the potential perjury when the witness is her client, giving more weight to the attorney-client relationship of confidentiality than candor to the court. These theorists take the position that the ability of a client to feel safe in his confidences to his attorney is so important to adversarial jurisprudence that the lawyer should be given a pass on any ethical or criminal violation. See Rule 3.3 cmt. 8; see also Monroe H. Freedman, Perjury: The Lawyer’s Trilemma, 1 Litigation 26, 30 (1975) (arguing that “the criminal defense attorney, however unwilling in terms of personal morality, has a professional responsibility as an advocate in an adversary system to examine the perjurious client in the ordinary way and to argue to the jury, as evidence in the case, the testimony presented by the defendant”); Barrie Althoff, Ethical Responsibility of Candor to Judges, Wash. St. Bar News, Oct. 1998 (arguing that the “may refuse to offer” language of Washington’s Rule 3.3(e) allows the- attorney discretion whether to offer false evidence). The problem with this approach is that the lawyer thus becomes “a knowing instrument of perjury,” Rule 3.3 cmt. 9, and it flies in the face of the goal of any trial, which is to arrive at the truth. See also In re Carroll, 244 S.W.2d 474 (Ky.1951) (“Under any standard of proper ethical conduct an attorney should not sit by silently and permit his client to commit what may have been perjury, and which certainly would mislead the court and the opposing party on a matter vital to the issue under consideration”).

Another possible resolution is that the accused be permitted to testify by narrative statement without the benefit of his attorney’s questioning and without informing the court of the specific reasons for the departure from regular examination. This solution, however, “compromises both contending principles” (the duty of candor and duty of confidentiality) by simultaneously “exempting] the lawyer from the duty to disclose false evidence but subjecting] the client to an implicit disclosure of information imparted to counsel.” Rule 3.3. cmt. 9. Moreover, the “lawyer participates, although in a merely passive way, in deception of the court,” Rule 3.3 cmt. 8, and the defendant gets to lie to the jury without serious challenge, other than the implicit question raised by the unorthodox procedure. Nix v. Whiteside, 475 U.S. 157, 170 n. 6,106 S.Ct. 988, 996 n. 6, 89 L.Ed.2d 123 (1986) (citing ABA Standards for Criminal Justice, Proposed Standard 4-7.7 (2d ed.1980)).

The third solution is that the lawyer reveal that her client is about to commit perjury, and the substance of what she believes the perjury to be, because no client has the right to assistance of counsel in committing perjury. Permitting perjured testimony undermines the fundamental purpose of finding the truth. This solution is what is generally contemplated by Kentucky’s version of Rule 3.3.

Often, clear statements are easier said than done. Under Rule 3.3, the question arises of how to best protect conflicting interests and rights. Rules 3.3(b) and (d) require ex parte disclosure of material facts to the court to enable it to determine “whether or not facts are adverse.” However, the rule does not specifically state when these facts must be disclosed or when the court must rule on them. To do this in a coherent fashion in the middle of a trial is difficult, and will clearly be prejudicial.

The approach taken in Commonwealth v. Mitchell, 438 Mass. 535, 781 N.E.2d 1237 (Mass.2003), while applying a somewhat different version of Rule 3.3, appears to address all relevant concerns. At trial, the defendant’s lawyer advised the court that the defendant would present false testimony to the jury, that counsel had attempted to persuade the defendant to not testify falsely, and that counsel needed instruction from the judge on how to proceed before the jury. Rule 3.3 of the Massachusetts Rules of Professional Conduct specifically does not require a lawyer to withdraw from a case if she reasonably believes that it would prejudice her client, and states that a lawyer “shall not reveal the false testimony to the tribunal,” but that the lawyer shall not elicit any testimony she knows to be false or argue the probative value of any false testimony. In Mitchell, before the defendant testified, the attorney and the Commonwealth approached the court, where the defense attorney told the court he had concerns about participating in a fraud on the court, but could not reveal more without violating the attorney-client privilege.

The defense attorney then told the court that he wanted to put the defendant on the stand, ask him his name, and let him tell his story to the jury. He informed the court that he would not seek to withdraw to avoid prejudicing his client, and that he had tried to dissuade his client to no avail. The judge agreed to let him continue, and ordered that he should remain standing during the defendant’s testimony, and make objections during cross examination, one question at a time, to avoid assisting the defendant in perjury. The attorney then asked the defendant, “Mr. Mitchell, what do you wish to tell these jurors?” and testimony proceeded in a narrative fashion. The attorney did not argue the defendant’s testimony during closing argument, and the court refused the defendant’s request to make an unsworn statement to the jury. The defendant was convicted.

The defendant filed a motion for a new trial claiming that the attorney and the court did not properly follow Rule 3.3, thus denying him several rights. The trial court considered sworn statements of the defendant and the defense attorney as to the specifics of their dispute, and denied the motion. The court found that the trial attorney “knew” the proposed testimony would be perjury and met the standard of having “a firm factual basis” for concluding the defendant would commit perjury; that there was no conflict of interest creating actual prejudice; and that by his actions the defendant had made a voluntary and knowing waiver of assistance of counsel with respect to the defendant’s disputed testimony only.

The Massachusetts Supreme Judicial Court held that the trial court was correct, stating:

Not ■ unexpectedly, courts have adopted differing standards to determine what an attorney must “know” before concluding that his client’s testimony will be perjurious. The standards include the following: “good cause to believe the defendant’s proposed testimony would be deliberately untruthful,” State v. Hischke, 639 N.W.2d 6,10 (Iowa 2002); “compelling support,” Sanborn v. State, 474 So.2d 309, 313 n. 2 (Fla.Dist. Ct.App.1985); “knowledge beyond a reasonable doubt,” Shockley v. State, 565 A.2d 1373, 1379 (Del.1989); a “firm factual basis,” United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 122 (3d Cir.1977); a “good-faith determination,” People v. Bartee, 208 Ill.App.3d 105, 108, 153 Ill.Dee. 5, 566 N.E.2d 855, cert. denied, 502 U.S. 1014, 112 S.Ct. 661, 116 L.Ed.2d 752 (1991); and “actual knowledge,” United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 (S.D.Fla.1990) (applying “actual knowledge” standard to require factual basis). The judge properly rejected standards that were too lenient (good cause to believe) or too rigid, particularly the standard sought by the defendant, knowledge beyond a reasonable doubt. The knowledge beyond a reasonable doubt standard essentially would eviscerate rule 3.3(e). That standard, as described by one court, is “virtually impossible to satisfy unless the lawyer had a direct confession from his client or personally witnessed the event in question.” State v. Hischke, supra at 10. The standard would also tend to compel defense attorneys to remain silent in the face of likely perjury that a sharp private warning could nip in the bud. See Nix v. Whiteside, 475 U.S. 157, 169, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

The judge correctly settled on the firm basis in fact standard. This standard satisfies constitutional concerns because it requires more than mere suspicion or conjecture on the part of counsel, more than a belief and more information than inconsistencies in statements by the defendant or in the evidence. Instead, the standard mandates that a lawyer act in good faith based on objective circumstances firmly rooted in fact. The lawyer may act on the information he or she possesses, and we decline to impose an independent duty on the part of counsel to investigate because such a duty would be “incompatible with the fiduciary nature of the attorney-client relationship,” United States v. Del Carpio-Cotrina, supra at 99 n. 9, and is unnecessary when an attorney relies, in significant part, on incriminating admissions made by the client.

Mitchell, 781 N.E.2d at 1246-47 (footnote omitted).

Further, as to the procedure followed by the trial court, the court stated:

The narrative form of testimony was properly directed. This approach was adopted by the ABA in 1971. See ABA Standards for Criminal Justice 4-7.7 (Approved Draft 1971). Although the ABA later rejected this approach and currently suggests that the lawyer may examine as to truthful testimony, and although the approach has been criticized, see United States v. Long, 857 F.2d 436, 446 n. 7 (8th Cir.1988), “the narrative [approach] continues to be a commonly accepted method of dealing with client perjury.” Shockley v. State, 565 A.2d 1373, 1380 (Del.1989). See Butler v. United States, 414 A.2d 844, 850 (D.C.1980); Sanborn v. State 474 So.2d 309, 313 & n. 3 (Fla.Dist.Ct.App.1985); People v. Bartee, 208 Ill.App.3d 105, 108, 153 Ill.Dec. 5, 566 N.E.2d 855 (1991). The defendant suggests that his trial counsel should have conducted a direct examination with respect to the “non-suspect” portions of his testimony and should also have argued the truthful portions of the defendant’s testimony in his closing argument. The former suggestion has been justifiably criticized by the Criminal Justice Section of the ABA: “[T]his is the worst approach of all.... This [approach] would be far worse for the client than saying nothing, not to mention it would be virtually impossible to control once the client takes the stand. And what about cross? How can you possibly prepare your clients for that? Tell them not to answer any questions that they do not like?” ABA Criminal Justice Section, Ethical Problems Facing the Criminal Defense Lawyer at 162 (1995). The latter suggestion is impractical, as it may call attention to testimony of the defendant that is not argued by trial counsel, and would likely lead to counsel’s making an incoherent final argument. We shall not impose these requirements on counsel. Further, to permit the defendant to make an unsworn statement or his own closing argument would allow him to do what rule 3.3(e) prohibits his counsel from doing, arguing perjured testimony to the jury. The defendant’s testimony was placed before the jury, and his trial counsel made a persuasive, well-reasoned closing argument to the jury. The judge correctly concluded that the defendant was not “denude[d]” of a defense.

Id. at 1249 (alterations in original).

In conclusion, the court summarized the competing interests, stating:

A summary of our disposition of this issue is now in order. The duties imposed on a criminal defense lawyer (zealous advocacy, preservation of client confidences, avoidance of a conflict of interest) and the constitutional rights granted a defendant (effective legal representation, opportunity to testify in his own defense, right to a fair trial) are circumscribed by what we demand of honorable lawyers and the core principle of our judicial system that seeks to make a trial a search for truth. The rights of a defendant are not so exclusive that justice can be subrogated to the defendant’s perceived interests thereby dismissing or ignoring the interests of victims and the Commonwealth ....

The standard set forth in rule 3.3(e) “confirm[s] that the legal profession has accepted that an attorney’s ethical duty to advance the interests of his client is limited by an equally solemn duty to comply with the law and standards of professional conduct; it specifically ensures that the client may not use false evidence. This special duty of an attorney to prevent and disclose frauds upon the court derives from the recognition that perjury is as much a crime as tampering with witnesses or jurors by way of promises and threats, and undermines the administration of justice.” (Footnote and citation omitted.) Nix v. Whiteside, supra at 168-169, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123. The standard in no way abridges constitutional rights of a defendant. There is no constitutional or permissible right of a defendant to testify falsely. When defense counsel attempts to persuade a defendant to testify truthfully, counsel is not depriving the defendant of his right to counsel nor the right to testify truthfully. “In short, the responsibility of an ethical lawyer, as an officer of the court and a key component of a system of justice, dedicated to a search for truth, is essentially the same whether the client announces an intention to bribe or threaten witnesses or jurors or to commit or procure perjury. No system of justice worthy of the name can tolerate a lesser standard.” Id. at 174, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123.

Id. at 1250 (alteration in original).

While there are differences in specific language between the Massachusetts rule and Kentucky’s version of Rule 3.3, the procedure laid down in Mitchell is coherent and adequately addresses the competing interests at play under the circumstances of the present and similar cases. When the question of a client’s imminent perjured testimony arises during trial, the attorney must comply with Rule 3.3 by bringing the existence of a potential conflict to the court’s attention. Under Kentucky’s Version of Rule 3.3, she must state “all material acts” necessary to establish the adversity between her and the client. This does not, however, require a detailed evidentiary statement of the disagreement. A clear statement of the nature of the problem will suffice. Also, before an attorney invokes Rule 3.3, she must in good faith have a firm basis in objective fact for her belief, beyond conjecture and speculation, that the client will commit perjury. This does require a difficult judgment call from the attorney, but it is only one of many tightropes an attorney is called to walk during the complex process of litigation. Counsel must rely on facts made known to her by her client, not on a subjective belief that the client might be lying or that the client’s consistent version of events differs from other evidence.

Once the trial court is made aware of the potential for perjury, the court must evaluate the situation and instruct counsel on how to proceed. It is consistent with Kentucky’s Rule 3.3 for the court not to conduct an evidentiary hearing during trial because even though the Rule requires disclosure, it does not say it must be made with specific detail during trial. For reasons of judicial economy, it is appropriate to reserve specific disclosure of the basis of the attorney’s belief until a motion for new trial is made by the defendant; he could be acquitted, or the motion never made. It is also not necessary for the court to appoint an independent attorney or question the defendant about his testimony. However, the court should engage in a colloquy with the defendant, like that in this case, about the importance of truthful testimony and the attorney’s ethical obligations and to generally educate the defendant about the nature of the situation, thus giving the defendant a chance to further consider any possible course of action. “If the defendant, now informed, moves for appointment of new counsel (and, concomitantly, a mistrial), the judge should deny the motions unless the defendant can demonstrate that such motion must be allowed to prevent a miscarriage of justice.” Mitchell, 781 N.E.2d at 1251.

It is also appropriate for the defendant to present the contested testimony in narrative form, in his attorney’s presence, and with the attorney continuing to represent him by making appropriate objections on cross-examination regarding portions of the testimony she does not believe to be perjured. In this manner, the defendant is always represented by counsel on matters for which he is entitled to be represented, not involving perjury. It is a denial of counsel to completely deprive a defendant of representation on matters not involving the alleged perjury. Because the defendant has made a knowing waiver of counsel as to any perjured testimony, there is no actual or prejudicial conflict between him and his attorney. An attorney may thus continue to represent her client on all parts of the trial not connected to the alleged perjury. If on a motion for new trial a court determines that there was not a good faith basis for the attorney’s belief and the attorney’s actions prejudiced the client, then a new trial can be granted with new counsel.

Finally, the procedure described above is not exclusive. As the Mitchell Court noted of its process:

No comprehensive canon can be written on all aspects of practical implementation because each case will have its own idiosyncrasies, and the judge cannot then be informed of the details underlying counsel’s invocation of rule 3.3(e). The judge possesses considerable discretion to vary any of the procedures discussed, if the interests of justice, or effective management of the trial so requires.

781 N.E.2d at 1251.

This process is not perfect; such could exist only in the absence of even the possibility of perjury. However, it addresses the competing interests created by this situation arising during trial. The defendant is never without counsel inappropriately. He is not denied his right to testify as he wishes. The attorney avoids participating in a fraud upon the court, yet does not prematurely disclose the specifics of her client’s confidence. The trial is not derailed by this controversy, and the Commonwealth is not prejudiced by undue delay. In future cases where this controversy arises, this is the approved approach to apply Rule 3.3 and Rule 1.6 without conflict.

Turning to the present case, trial counsel and the court assiduously tried to find a proper solution to the problem with which they were confronted. Defense counsel did properly reveal his concern to the court in a manner that did not accuse his client of perjury, but nevertheless alerted the court that a problem with candor existed. The court properly advised counsel to discuss the matter with his client and to try to persuade him not to give the questioned testimony. Further, the court spoke directly with the Appellant in an abundance of caution to ensure that he understood the problems with what he was doing. Counsel and Appellant were given time to carefully consider their course of action. But Appellant remained adamant and was given the opportunity to testify as he saw fit.

However, the court did err in advising Appellant and counsel that counsel could leave the courtroom during the narrative testimony. They either chose this option together or defense counsel chose his preference — the record does not disclose which. By completely leaving the courtroom, in the presence of the jury, counsel telegraphed a problem to the jury. This was improper absent a knowing and voluntary waiver of counsel by Appellant as to representation beyond the perjured testimony. Counsel should have remained to assist when he could, since only counsel knew what he believed to be a proper question or an improper one. It remains unknown whether counsel had a good faith, firm factual basis to believe the testimony would be perjury. Had counsel remained and assisted when he could, the need for specific findings would not have arisen until a motion for a new trial was filed. However, given that no one other than counsel and Appellant knew the contested area of testimony, requiring Appellant to testify wholly on his own and without benefit of counsel’s objections on cross examination (which would have been directed at evidentiary rules rather than content), Appellant was unconstitutionally deprived of his right to assistance of counsel. This was compounded by requiring him to make his own closing argument and allowing counsel to return to conduct the sentencing phase.

Although valiantly trying, the court did not properly balance all the competing interests in this trial as the process set forth above would have required. Given the complexity of the issues, and the lack of time inherent in the trial process, this is understandable. Nonetheless, reversal is required.

III. Conclusion

When an attorney determines at trial that her client is about to perjure himself, Rule 3.3 shall be read to require procedures consistent with this Opinion, which shall not be deemed to violate Rule 1.6.

Further, the trial court in this case made heroic efforts to guard all parties’ rights in a very difficult scenario. Her colloquy with the defendant was very thorough, and sets a good example of what should be addressed to the defendant in circumstances such as these. The only error was in allowing trial counsel to completely abandon defendant during his narrative statement, cross-examination and closing argument in the guilt phase of the trial. Allowing counsel to then reappear for the penalty phase, while technically logical, nonetheless prejudicially compounded the appearance of irregularity to the jury. This all served to deprive Appellant of counsel at critical stages of the trial.

Because this Court finds that Appellant is entitled to a new trial on his claim of denial of assistance of counsel, it is not necessary to address his claim that he was improperly prevented from adequately impeaching Officer King, as the error, if any, is unlikely to recur at retrial.

Consequently, the judgment of the Court of Appeals is reversed, and this case is remanded to the Jefferson Circuit Court for a new trial.

LAMBERT, C.J.; CUNNINGHAM and MINTON, JJ., concur. CUNNINGHAM, J., concurs by separate opinion in which LAMBERT, C.J.; MINTON and NOBLE, JJ., join. SCOTT, J., dissents by separate opinion in which McANULTY, J., joins. SCHRODER, J., not sitting.

1 . The Rules of Professional Conduct are codified as Supreme Court Rule 3.130. References herein to a “Rule” or “rules” are to the Rules of Professional Conduct, unless indicated otherwise.

2 . Rule 3.3 provides:

(a)A lawyer shall not knowingly:

(1) Make a false statement of material fact or law to a tribunal;

(2) Fail to disclose a material fact to the tribunal when disclosure is necessary to avoid a fraud being perpetrated upon the tribunal;

(3) 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.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.

(d) 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.

3 . Rule 1.6 provides:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1)To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or

(3) To comply with other law or a court order.