Mark Hinderks of Stinson, LLP. Courtesy photo

Dear Ethics Lawyer

This column, written by Mark Hinderks, of Stinson LLP, focuses on ethics questions. The discussion here is based on the ABA Model Rules of Professional Conduct, but the Model Rules are often adopted in different and amended versions, and interpreted in different ways in various places. Always check the rules and authorities applicable in your relevant jurisdiction—the result may be completely different.

Question: We just settled a case last week for a somewhat challenging client. I was happy to get it over with and move on. This morning, a couple of days after the settlement agreement was signed and the check cashed, I ran into our client at a restaurant. He pulled me aside and said he was really glad to have the case settled because (looking sheepish) there were some bad documents he had kept in his drawer and not produced. After I told the client we'd never work for him again if he would pull tricks like that, I called and checked the court file, and the order of dismissal has been submitted to the court for signature but has not yet been signed. Do I have any obligation to do anything? Isn't the conversation with the client privileged such that I cannot reveal it? Can I or should I tell anyone?

Answer: The original version of Model Rule 1.6 precluded disclosure of information except to prevent a pending crime or fraud, as has the attorney-client privilege. Arguably, the concealment of relevant information in order to induce a settlement is a fraud and, in some circumstances, also a crime. The fact that the money has been received and the transaction completed makes this a close call as to whether it is a still pending fraud (as to which disclosure is permitted) or a completed fraud (as to which it is not under the original version of Model Rule 1.6).