Emmanuel Charles WHITESIDE, Appellant, v. David SCURR, Warden, Appellee, 750 F.2d 713

ORDER McMILLIAN, Circuit Judge. The motion for rehearing en banc is denied. Contrary to the argument presented by the state in support of the motion for rehearing en banc, our opinion does not create a right to commit perjury. Our opinion expressly states that the criminal defendant’s privilege to testify in his or her own defense does not include the right to commit perjury. Perjury is a most serious offense and anyone who commits perjury should be punished for it. Our holding is limited to the fact situation in the present case.

We hold only that a lawyer who has a firm factual basis for believing that his or her client is about to commit perjury, because of confidential communications the client has made to the lawyer, may not disclose the content of those confidential communications to the trier of fact, in the present case the jury. The lawyer who discloses confidential communications or who threatens to do so has departed from the role of an advocate and has become an adversary to the interests of his or her client.

Such a client has lost the effective assistance of counsel, a right to which even those defendants who may later be accused of perjury are entitled.