¶1(concurring specially).
¶2I concur in affirming defendant’s conviction.
¶3This case vividly illustrates the difficulty in determining whether a lawyer has a sufficiently convincing reason to believe a client is about to commit perjury. I have no disagreement with the test, which the opinion of the court employs for making such determinations consistent with the lawyer’s ethical obligation. Nor do I question the conclusion of defendant’s counsel in the present case in the face of that test. The decision could have gone either way on these facts.
¶4This case does not discuss, because the issue is not raised, whether the action that defendant’s counsel took upon becoming convinced of the impending perjury was proper. I am convinced that it was not. My disagreement with defense counsel’s action flows from a belief that it is never proper for counsel to advise the court that counsel believes a client will testify falsely. Such conduct will inevitably damage the client’s case beyond repair.
¶5Counsel who reach the conclusion that a client is about to testify falsely should first attempt to dissuade the client from giving the offending testimony. If unsuccessful, counsel should attempt a quiet withdrawal from the representation. The reasons set forth in the application to withdraw should only identify the existence of an unspecified attorney-client disagreement that might compromise the attorney’s ethical responsibilities. At no time should the matter of impending perjury be disclosed. If the attempt to withdraw fails, then counsel should proceed with the case and conduct any questioning of the witness so as not to invite the suspected perjury. If the suspected perjury nonetheless occurs, counsel should make no reference of it in arguing the case to the trier of fact. I believe that if a lawyer proceeds in this manner, he or she may fully satisfy the lawyer’s ethical obligation to prevent perjury without the necessity of advising the court as to the client’s intent to testify falsely.
¶6Lavorato, C.J., joins this special concurrence.