MEMORANDUM OF LAW

PERJURY

INTRODUCTION

Perjury is a crime. Any witness who gives false testimony may be fined or imprisoned. In addition, every policyholder has a duty to cooperate with the liability insurer.1 Giving false testimony may void otherwise valid coverage, depriving both the policyholder and the plaintiff of the protection of a liability policy.2 "When [a] misrepresentation concerns a material matter and substantially affects the rights of the insurer, there is unquestionably a breach of the policy."3

PERJURY

The California Penal Code provides in part as follows:

Sworn material testimony known to be false

"(a) Every person who, having taken an oath that he or she will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which the oath may by law of the State of California be administered, willfully and contrary to the oath, states as true any material matter which he or she knows to be false, and every person who testifies, declares, deposes, or certifies under penalty of perjury in any of the cases in which the testimony, declarations, depositions, or certification is permitted by law of the State of California under penalty of perjury and willfully states as true any material matter which he or she knows to be false, is guilty of perjury." (Pen. Code, § 118.)

Irregularity no defense

"It is no defense to a prosecution for perjury that the oath was administered or taken in an irregular manner, or that the person accused of perjury did not go before, or was not in the presence of, the officer purporting to administer the oath, if such accused caused or procured such officer to certify that the oath had been taken or administered." (Pen. Code, § 121.)

Incompetence no defense

"It is no defense to a prosecution for perjury that the accused was not competent to give the testimony, deposition, or certificate of which falsehood is alleged. It is sufficient that he did give such testimony or make such deposition or certificate." (Pen. Code, § 122.)

Ignorance of materiality no defense

"It is no defense to a prosecution for perjury that the accused did not know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and might have been used to affect such proceeding." (Pen. Code, § 123.)

Complete upon delivery

"The making of a deposition, affidavit or certificate is deemed to be complete, within the provisions of this chapter, from the time when it is delivered by the accused to any other person, with the intent that it be uttered or published as true." (Pen. Code, § 124.)

Ignorance of truth of unqualified statement

"An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. (Pen. Code, § 125.)

Punishment

"Perjury is punishable by imprisonment . . . for two, three or four years. (Pen. Code, § 126.)

Suborning perjury

"Every person who willfully procures another person to commit perjury is guilty of subornation of perjury, and is punishable in the same manner as he would be if personally guilty of the perjury so procured." (Pen. Code, § 127.)

An insurer's breach of duty to the policyholder does not excuse the policyholder from the obligation to testify truthfully. "The change [in the relationship between the insurer and policyholder occasioned by the insurer's breach of duty] does not or should not affect the policyholder's obligation to appear as defendant and to testify to the truth."4

"Cooperation, within the meaning of the policy, does not mean that the insured is to aid and assist the insurer in the maintenance of a sham defense. It does, however, imply good faith. The insured is not obliged to keep his mouth closed merely because an insurance policy is involved. When he does speak, however, it must be to tell the truth. When the misrepresentation concerns a material matter and substantially affects the rights of the insurer, there is unquestionably a breach of the policy."5

"A co-operation clause binds the insured to the exercise of good faith and when he speaks concerning the facts of the accident it must be to tell the truth. To wilfully misstate or conceal facts in such a case is clearly not co-operation or assistance; it is exactly the opposite."6

"This appeal tenders the question whether the doctrine of unclean hands precludes an action for legal malpractice predicated upon injuries caused when [a client] followed the advice of his lawyer to lie at a deposition. We shall conclude that it does."7