Thus, the code requires a lawyer to reveal a fraud occurring in the course of the representation, subject to the confidentiality provisions of Disciplinary Rule 4-101. Professor Roy Simon has written that the “confidence or secret” exception to the reporting requirement of DR 7-102 (B) has “almost gutted” the rule: “Only rarely will a lawyer have information about a client’s fraud that will not be protected as a confidence or secret.”4
The code’s “crime/fraud exception” permits a lawyer to reveal, “[t]he intention of a client to commit a crime and the information necessary to prevent the crime” [DR 4-101 (C)(3)].
In addition, a lawyer may reveal client confidences to the extent implicit in withdrawing a false representation previously given by the lawyer which is being relied upon by a non-client, “or is being used to further a crime or fraud” [DR 4-101 (C)(5)].
Thus if a lawyer believes another person is relying on materially inaccurate information emanating from the lawyer, the code permits the disclosure of client secrets, but only to the extent necessary to withdraw the misrepresentation.
Two recent opinions of the New York State Bar Association Committee on Professional Ethics interpret the exceptions to DR 4-101.
NYSBA Ethics Opinion 781 (2004) considered the case of a matrimonial attorney who signed and filed with the court a financial disclosure statement she later learned, from her client, to be false.
The state bar opined that the attorney’s signature on the disclosure statement triggered a duty to correct the misrepresentation: “Although a lawyer is generally prohibited from disclosing a client’s confidence or secret, DR 4-101 (C)(5) permits disclosure to the extent implicit in withdrawing the financial statement because the statement is still being relied upon by the court and because the lawyer certified the accuracy of the statement in submitting it to the court.”
Since the misstatement was not protected as a confidence or secret under DR 4-101, withdrawal of the financial statement was mandatory under DR 7-102.
NYSBA Ethics Opinion 797 (2006) involved a lawyer who filed a certification with the Surrogate’s Court that she subsequently learned, from her client, to be false. The ethics committee opined that the lawyer’s certification should be withdrawn, as an incorrect representation by the lawyer being relied upon by a third person.
However, the committee cautioned that the lawyer should be careful to disclose only those confidences implicit in withdrawing her previous certification: “DR 4-101 (C)(5) authorizes disclosure of the client’s fraud only to the extent implicit in withdrawing the lawyer’s representation under Part 130. Consequently, the facts surrounding the client’s conduct are still protected as a confidence or secret.”5 Thus the state bar opined that lawyers’ false representations to the court must be withdrawn without revealing the underlying client confidences.
‘DePallo’
In People v. DePallo, the Court of Appeals outlined the steps that criminal defense lawyers should take when a client insists on committing admitted trial perjury.6
When the lawyer knows that the client intends to commit perjury, she should attempt to dissuade the client from testifying falsely. Should remonstration fail, then the lawyer should notify the court of the client’s intention to testify falsely, present the testimony in narrative form, and abstain from referring to the perjured testimony in closing argument.
According to the Court, a client’s “intent to commit a crime is not a protected confidence or secret.”7 Accordingly, “an attorney’s revelation of his client’s perjury to the court is a professionally responsible and acceptable response.”8
In People v. Darrett, the defense lawyer revealed client confidences unnecessarily at a pretrial Huntley hearing in which the sole issue was the voluntariness of the defendant’s confession.9 Defense counsel secretly approached the hearing judge ex parte and disclosed client confidences about the case.
The lawyer’s revelations to the court violated the client’s right to counsel because “counsel revealed to the court more than was necessary to convey her belief, ultimately unrealized, that her client intended perjury.”10
The Appellate Division admonished counsel to “make every reasonable effort to limit the amount of information he or she conveys to a judge who is acting as a fact-finder,” and ordered a new hearing.11
New Rules
Effective April 1, 2009, Rule of Professional Conduct 3.3 (a)(3)12 forbids a lawyer from offering or using known false evidence, and requires a lawyer to take reasonable remedial measures upon learning of past client perjury:
The lawyer’s duty of confidentiality is contained in RPC 1.6. However, RPC 3.3 (c) requires a lawyer to remedy client perjury “even if compliance requires disclosure of information otherwise protected by Rule. 1.6.”13
When does a lawyer “know” that a client’s testimony is false? RPC 1.0 (k) requires “actual knowledge of the fact in question,” which “may be inferred from circumstances.” See also In re Doe.14
Under RPC 3.3 (c), the lawyer’s duty to remedy an admitted fraud on the court trumps the lawyer’s duty to maintain client confidences under RPC 1.6.
Conclusion
Under the new Rules of Professional Conduct a lawyer must take reasonable measures to remedy a client’s known past perjury, including, if necessary, disclosure of confidential information to a tribunal.
However, the lawyer should respect the client’s confidentiality rights by disclosing no more than is necessary to correct the fraud on the court.
Barry R. Temkin is an adjunct professor at Fordham University School of Law and at New York Law School. He is also chair of the New York County Lawyers’ Association Professional Ethics Committee and counsel to the Law Offices of Edward Garfinkel.
Endnotes:
1. 22 NYCRR 1200.0 et seq.
2. See NYCLA Ethics Op. 712.
3. 96 N.Y. 2d 437 (2001).
4. Simon’s New York Code of Professional Responsibility Annotated (2007) at 1144.
5. NYSBA Ethics Op. 797 at 4.
6. 96 N.Y. 2d 437 (2001).
7. 96 N.Y. 2d at 442.
8. 96 N.Y. 2d at 441 (quoting Nix v. Whiteside, 475 U.S. 157).
9. 2 A.D. 3d 16 (2003).
10. 2 A.D. 3d at 19.
11. 2 A.D. 3d at 25.
12. RPC 3.4 further proscribes knowing use of perjury or false evidence.
13. RPC 3.3 (c).
14. 847 F. 2d 57 (2d Cir. 1988) (lawyer must have clear knowledge rather than “mere suspicions of fraud” to trigger disclosure duty).
