Corn v. Mitchell
781 N.E.2d 1237 (Mass. 2003)

  • Mitchell was convicted of murdering two people. He made a motion for a new trial, which was denied by the Trial Judge.
    • Turns out, during the original trial, Mitchell’s attorney had told the judge that Mitchell was likely to present false testimony.
      • The attorney was relying on Rule 3.3(e), which required that the attorney inform the court if they suspect their client intends to testify falsely in a criminal trial.
        • You have a duty to not assist your client in future crimes (Rule 1.6(b)(1-3)), and perjury is a future crime.
      • The judge told Mitchell’s attorney to let him testify, but not to do anything to assist Mitchell in presenting false testimony, by asking Mitchell specific questions about his statements.
    • Mitchell’s attorney informed the judge of this fact in a sidebar conversation without Mitchell being present.
      • Mitchell argued that if he had known that his lawyer was ratting him out, he would have had the opportunity to convince the Judge that he would testify truthfully.
  • Mitchell appealed, on the basis that he did not have effective counsel.
  • The Massachusetts Supreme Court affirmed the decision to not grant a new trial.
    • Mitchell argued that his attorney only suspected that he was going to perjure himself, and that Rule 3.3(e) is only applicable when the attorney knows that his client intends to break the law, but both the Trial Judge and the Massachusetts Supreme Court found that all that is necessary is that the attorney has a “firm factual basis” for their decision.
    • The Massachusetts Supreme Court agreed that Mitchell should have been a party to the sidebar conversation, but that his absence did not materially affect his case.
    • Mitchell unsuccessfully argued that his attorney ratting him out amounted to a conflict of interest, and that he could not be properly represented by a person who wasn’t 100% looking after his interests. The Massachusetts Supreme Court found that argument was unpersuasive because they felt that it would make it almost impossible for an attorney to comply with Rule 3.3 and not get sued by their client.
  • In general, the standard set forth in Rule 3.3 is 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.”