Ethics Committee also looks at how to handle unsolicited information
By Gary Blankenship
An attorney representing a criminal defendant in court must tell the court if the defendant is using an assumed name, even if the client refuses to make the disclosure on his or her own.
The Bar’s Professional Ethics Committee January 18 adopted a revised Ethics Opinion 90-6, which governs the duty of attorneys when they learn that their criminal clients are proceeding in court under false names.
The committee also addressed a request from the Bar Board of Governors for a formal opinion on ethical obligations when a would-be client provides, without meeting or contacting the attorney beforehand, voluminous information about potential representation.
On Opinion 90-6, the revised opinion noted that the original opinion had addressed only the attorney’s duties when the client intended to testify using the false identity. It concluded while the attorney could not help the client in such false testimony, the attorney-client privilege and other factors prevented the attorney from disclosing to the court the client’s use of an alias.
The revised opinion, citing other Bar rules, alters that advice. It notes that Rule 4-3.3(a) bars an attorney from making a false statement of material fact or law to a tribunal or failing to disclose a material fact when that failure is necessary to avoid a criminal or fraudulent act by a client.
Other rules, the opinion said, prohibit the lawyer from assisting the client in a fraudulent act or from “dishonesty, fraud, deceit, or misrepresentation.”
“[T]he committee is of the opinion that if the lawyer knows that the client is proceeding under a false identity, the lawyer would be involved in the fraud on the court. For example, the mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket sounding involves misrepresentation to the court in which the lawyer cannot participate. By filing under the false name or responding to the false name, the lawyer essentially represents that the client is that person,” the opinion said.
The opinion advised that if the lawyer learns of the deception during consideration of taking on the client, the attorney must refuse the representation, unless the client agrees to make the appropriate disclosure.
If the lawyer has already been engaged but has not made a formal appearance in court when he or she learns of the misrepresentation, the attorney must tell the client that the attorney cannot assist in misleading the court and attempt to get the client to disclose. If the client refuses, the attorney must disclose the misrepresentation to the appropriate authority, which could be the prosecutor of the court, and then withdraw from the case.
If the attorney has already made a formal court appearance, the attorney must inform the court, and if that creates a conflict between the lawyer and client, the lawyer must seek to withdraw from the case. However, if ordered by the court, the attorney must continue the representation.
“All of the above scenarios presuppose that there is nothing in the court file to indicate that the client has been charged and is proceeding under a false name. If the client has been charged as a ‘John Doe’ or ‘Jane Doe’ and clearly is openly refusing to disclose his or her identity, there is no misrepresentation to the court and the above rules are not applicable. See Rule 4-3.4(c). Under this circumstance, the lawyer need not specifically disclose to the court that the client is proceeding under a false name. Rule 4-3.3, Rules of Professional Conduct,” the opinion said.
Committee members, in discussing the opinion, noted that while it requires the attorney to disclose the client has used an alias, it does not require the attorney to provide the client’s true identity.
Committee member Joseph Centorino noted that giving a false name in court and thereby misleading the court could be considered a crime, and an attorney may not assist in the commission of a crime. “There’s rarely a legitimate reason for not giving your correct name,” he added.
Bar Ethics Counsel Elizabeth Tarbert said an ethics opinion cannot address such legal issues, only ethical matters. It’s up to the attorney to determine if a law is being broken, she said, and then the opinion tells the lawyer his or her ethical duty once that determination has been made.
The committee unanimously approved the revised opinion, which is available here.
On the would-be client issue, Tarbert said several other states have looked at problems when people seeking a lawyer deluge a firm with information without first making any formal contact, in person or by phone.
Committee member Bill Wagner noted because of the information age, people out of the blue can now e-mail vast amounts of information and electronic documents about a case, send faxes, or even leave extensive phone mail messages
“The types of things that you get, it may or may not be confidential,” said committee member Homer Duvall. “The other scenarios that I have a concern with — and I work for a large firm — is the prospective client who knows that we represent a particular client [adverse to the caller] and will call up someone in the firm somewhere in the United States and disclose confidential information in a conversation, ostensibly about hiring the law firm to represent them when it fact what they really want to do is conflict out the law firm because we had that conversation.
“You have legitimate situations where someone is seeking legal representation and they contact you and you have to get a certain amount of information to see what they are contacting you about,” he added.
While Bar rules provide that someone who contacts a firm with the purpose of disqualifying the firm from representing another client has no protections, Duvall said such intent can be hard to prove.
Committee members noted that some lawyers in their ads, particularly on their Web sites, encourage potential clients to send information about potential cases, and that might be considered different from a potential client who picks a name out of a phone book and then bombards that attorney with information, some of which might be confidential under an attorney-client relationship.
Tarbert noted that one law firm had a potential client leave a long, detailed phone mail message about hiring the firm in a divorce case, apparently not knowing that the firm already represented the other spouse.
Tarbert provided the committee with two drafts of possible opinions defining when an attorney-client relationship might exist in such circumstances, and the panel said they preferred the first option and suggested several modifications. Those will be incorporated and the revised opinion will be brought back to the committee for its June meeting.
The draft says in part, “[T]he committee generally agrees with the rationale of the state bars that have addressed this issue. The committee’s opinion is that a person has no reasonable expectation that a lawyer will keep confidential information that is sent by that person on a totally unsolicited basis. The committee concludes that such a person is not a ‘prospective client’ within the meaning of Rule 4-1.18, because the lawyer has not discussed the possibility of representation with the person, nor even agreed to consider representing the person. The lawyers therefore will not have a conflict of interest in representing the adversary of a person who has sent information to the lawyer on an unsolicited basis, and the lawyer may disclose or use that unsolicited information in the representation of an adversary. On the other hand, if the lawyer has discussed the possibility of representation with a person or agreed to consider representing the person, that person is a ‘prospective client’ under Rule 4-1.18, and the lawyer therefore owes the person a duty of confidentiality which may create a conflict of interest in representation of an adversary.”